MORE GOOD NEWS FROM PROFESSOR ALBERTO BENITEZ @ GW LAW: Two More Northern Triangle Lives Saved By Asylum Grants in Arlington – Giving Lie To the Trump Administration/Restrictionist Claim That Northern Triangle Refugees Are “Economic Migrants” — No, The Vast Majority Are “Legitimate Refugees” Being Screwed Over By Our Government’s Skewed, Dishonest, Immoral, & Often Illegal Policies

Friends,

Please join me in congratulating GW Immigration Clinic alum Shira Zeman, ’12, who won an asylum grant for a Central American Mom and her 5 year-old son earlier this week. Please see the attached picture, which I use with permission. Gang members threatened to kill Mom if she did not allow them to use her son in gang activities. These same gang members murdered one of Mom’s neighbors, a police officer, after he refused to allow a family member to join the gang. Mom testified for over an hour, after which the ICE trial attorney told the Immigration Judge she did not oppose asylum. Shira said: “He’s 5 now, but he had just turned 3 when they tried to ‘recruit’ him so he could be used as a drug mule.”

Intense. This installation is a must-see. Being in the ‘hielera,’ and in the ‘desert’ witnessing nighttime arrests by the Border Patrol, was beyond belief. Visitors were in tears and one fell to her knees. I read this Washington Post article prior to my visit but I was unprepared for the experience.

https://www.washingtonpost.com/goingoutguide/alejandro-g-inarritus-virtual-reality-voyage-is-dcs-most-intriguing-experience-right-now/2018/04/11/d2714380-3c04-11e8-974f-aacd97698cef_story.html?utm_term=.8f8162e02386

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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congratulations to Shira Zeman, Esq., of Zeman & Petterson PLLC, Falls Church, VA. I’m awed by the legal accomplishments and lives saved by Shira and her law partner Rachel Petterson! Hard to believe that she’s only six years out of law school!

We hear it all the time from Trump, Sessions, Nielsen, CIS, FAIR, GOP White Nationalist right wingers, right-wing media, and perhaps most disturbingly sometimes officials at EOIR and Immigration Judges. These aren’t “real refugees,” just folks coming here to work.

Nothing could be further from the truth. Make no mistake about it, these are “real refugees” intentionally being given the shaft by our biased and unfair Government and in far too many cases being denied the life-saving protection to which they are entitled under both U.S. and international law!

In my experience, few individuals, particularly women and children, undertake the long, dangerous, and uncertain journey from the Northern Triangle to our Southern Border unless they are forced migrants. Indeed, I found that many of the individuals coming from the Northern Triangle were doing fine economically and would have vastly preferred to stay in their homes, rather than being relegated to sometimes menial “entry-level” jobs even when they are able to be released in the U.S. Successful students sometimes lose credit in U.S. school systems and must “start over again” in lower grades or special programs.

Indeed, perhaps ironically, their success helped make them very visible, distinct, and attractive targets for both persecution by the gangs and sometimes also for extortion and mistreatment by corrupt police and government officials in the Northern Triangle. Others were perceived by the gangs to be actual or potential political leaders in the “anti-gang movement.” Moreover, as gangs increasingly become involved in the political process in the Northern Triangle, opposition to gangs takes on heavy political implications.

No, this case is not an “aberration or an exception.” There are lots of similar or identical “moms and kids” out there from the Northern Triangle fighting every day for their very lives in a system already rigged against them and which Jeff Sessions has pledged to make even more unfair and more “user unfriendly.”

The things that allowed this “mom and child’ to succeed are:

Representation by a great lawyer like Shira;
Freedom from detention;
Adequate time to prepare and document the case;
A fair, knowledgeable Immigration Judge not biased against or dismissive of Northern Triangle asylum seekers;
An experienced DHS Assistant Chief Counsel committed to a fair application of asylum law and unafraid to recognize when further litigation or appeal would be counterproductive for both the individual and the court system.

An Attorney General truly interested in upholding the rule of law and our Constitution would be working to replicate what happened in this case elsewhere and to look for ways in which refugees like this could be recognized without having to go to a final merits hearing before an Immigration Judge. He or she would also be encouraging others in the Administration to focus on addressing the problems in the Northern Triangle causing this humanitarian migration, instead of focusing solely on fruitless attempts to discourage and deter the vulnerable migrants themselves.

But, that would an Attorney General “OTJS” — “Other Than Jeff Sessions.”

PWS

04-23-18

IT TOOK MANY YEARS AND LOTS OF EFFORT, BUT RESPONDENTS FINALLY WON ONE @ THE BIA — ON STALKING — Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)

Sanchez3924

Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)

BIA HEADNOTE:

The offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, MALPHRUS

OPINION BY: JUGE JOHN GUENDELSBERGER

DISSENTING OPINION: JUDGE GARRY D. MALPHRUS

KEY QUOTE FROM MAJORITY:

Although the DHS appears to concede that stalking under section 646.9 is “overbroad” relative to the definition we outlined in Matter of Sanchez-Lopez, it asserts that we should broaden the definition of a “crime of stalking” under section 237(a)(2)(E)(i) of the Act to meet contemporary standards. Specifically, it argues that we should redefine the term “stalking” in the Act based on its commonly understood meaning, either in 2012 when we decided Matter of Sanchez-Lopez, or based on the common elements of State and Federal stalking statutes in 2017.

We recognize that the common elements of stalking have evolved since section 237(a)(2)(E)(i) was added to the Act in 1996, in that a number of States have broadened the term “stalking” to cover threats of nonphysical harm in an effort to afford greater protections to their citizens against stalkers. However, we are constrained to define offenses “based on the ‘generic, contemporary meaning’ of the statutory words at the time the

statute was enacted.” Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272, 2281 (2016), which declined “to wind the clock back” to consider the common law in discerning whether the provision at issue reached reckless acts. But that case also looked to the legislative history and the “state-law backdrop” that existed at the time the statute was enacted. Id. at 2280–82. We are therefore unpersuaded to broaden the definition of the term “stalking” under section 237(a)(2)(E) of the Act to encompass the most contemporary understanding of that offense.

Upon reconsideration, we conclude that the offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Act. We will therefore overrule our decision in Matter of Sanchez-Lopez and vacate all prior orders in this case to the extent they hold to the contrary. Accordingly, because the respondent is not removable, his appeal will be sustained and the removal proceedings will be terminated.

KEY QUOTE FROM DISSENT:

The legal landscape has changed since we published our decision inMatter of Sanchez-Lopez. This case illustrates the limitations of applying the categorical approach imposed by the Supreme Court in Descamps andMathis to provisions of the immigration laws enacted by Congress for the purpose of removing aliens convicted of serious criminal conduct. See Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus, concurring). Under this approach, only if section 646.9 is divisible can we look to the respondent’s conviction records to determine if his conduct involved an intent to cause the victim to fear death or bodily injury, as many such stalking cases do. Because of this strict categorical approach, many statutes that have since broadened the scope of protection for stalking victims may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act. As a result, in California and many other States, an alien who was criminally convicted of stalking an innocent victim will not be removable under the Act, even though the record makes clear that he or she committed “a crime of stalking.” It is highly unlikely that Congress intended this result.

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I liked the comment from Dan Kowalski over at LexisNexis Immigration Community: “It only took about 6 years and several trips up and down the administrative and judicial food chain.”

My point (that I make over and over) is that there is NO WAY that an unrepresented respondent (particularly in DHS detention where most respondents convicted of crimes end up) could have achieved this result. That means that unrepresented individuals are wrongfully deported by DHS every day.

The Immigration Court system already is failing in its duty to guarantee fairness and due process to all respondents. Outrageously, instead of doing what he should do — working to insure maximum representation and raising the quality of Immigration Judge and BIA decisions to insure Due Process — Jeff Sessions is doing just the opposite!

He’s putting “haste makes waste quotas” on Immigration Judges; encouraging judges to deny continuances needed to obtain counsel and adequately prepare defenses; locating Immigration Courts in detention centers which intentionally lack both public access and ready availability of pro bono counsel; using coercive, substandard detention and family separation to deter individuals from pursuing potentially successful claims and defenses; further skewing the law against asylum seekers; and suspending the essential “Legal Orientation Program” which helps unrepresented individuals in detention understand their rights and what will happen in Immigration Court before their first appearance before a judge.

PWS

04-20-18

MULTI-TALENTED TAL @ CNN TAKES US TO THE S. BORDER IN PICTURES & WORDS!

http://www.cnn.com/2018/04/19/politics/secretary-nielsen-dhs-border-fence-wall-immigration/index.html

Snapshots from the US-Mexico border

By Tal Kopan, CNN

Updated 6:55 PM ET, Thu April 19, 2018

Here are Tal’s pictures. For whatever technical reason, you’ll have to go to the original article at the link to get the captions that go with them!

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Wow! As those of you who read “Courtside” on a regular basis know, I’m a HUGE FAN of Tal’s timely, incisive, concise, and highly accessible reporting. I feature it on a regular basis. I’ve also seen her do a great job on TV and video. But, until now, I didn’t know about her skills as a photojournalist. Tal can do it all!

Also, as my colleague Judge and Super-Blogger Jeffrey Chase pointed out in one of his recent comments on this blog, pictures play an essential role in understanding the immigration saga in America.

Been there, done that in my career. Takes me back to the long past days of riding three wheelers, helicopters, Patrol Cars, looking through infrared night scopes, and even accompanying foot patrol during my days in the “Legacy INS General Counsel’s Office.” (Most often on the border south of San Diego.) We actually took the Trial Attorneys and some of the Assistant U.S. Attorneys prosecuting our cases with us to show them what it was really like at the “ground level.”

Actually doesn’t look all that much different decades later. What is painfully clear is that walls, fences, helicopters, detectors, unrealistically harsh and restrictive laws, and more detention centers (the “New American Gulag”) will never, ever “seal” our borders as some immigration hard-liners insist is possible.

At best, we can control, channel, and regulate the flow of migrants, but not halt it entirely. Human migration was taking place long before the U.S. became a nation, and I daresay that it will continue as long as there are humans left on earth. To think that walls, troops, concentration camps, harsh laws, and prisons are going to halt it completely is a mixture of arrogance and ignorance.

So, rather than pouring more money down the drain on the same “strategies” that have been failing for decades, a “smart” border control policy would involve:

More realistic and generous interpretations of our refugee and asylum laws that should include most of those fleeing for their lives from the Northern Triangle;
A much larger and more “market based” legal immigration system for permanent and temporary migrants that would meet the legitimate needs of U.S. employers and our economy while making it attractive for most prospective workers and employers to use the legal visa system rather than the “black market” of undocumented entry;
A larger and more robust refugee processing program for Northern Triangle refugees so most would be screened and documented outside the U.S.;
Cooperation with the UNHCR and other stable countries in the Western Hemisphere to distribute the flow of long-term and temporary refugees in an equitable manner that will help both the refugees and the receiving countries;
Working with and investing in Mexico and Northern Triangle countries to address and correct the conditions that create migration flows to the Southern Border.
Providing lawyers for asylum applicants who present themselves at the Southern Border so that their claims for protection (which actually go beyond asylum and include protection under the Convention Against Torture) can be fairly, correctly, and efficiently determined in an orderly manner in accordance with Due Process.

No, it’s unlikely to happen in my lifetime. But, I hope that future generations, including the members of the “New Due Process Army,” will find themselves in a position to abandon past mistakes, and develop the smart, wise, generous, humane, realistic, and effective immigration and refugee policies that we need to keep our “nation of immigrants” viable and vitalized for centuries to come. Until then, we’re probably going to have to watch folks repeat variations of the same painful mistakes over and over.

PWS

04-19-18

SCOFFLAW SESSIONS LOSES AGAIN ON SANCTUARY CITIES – 7TH CIRCUIT FINDS SESSIONS’S ACTIONS UNCONSTITUTIONAL “Usurpation Of Power” — City of Chicago v. Sessions

Trump and Sessions lose another sanctuary cities case

By: Tal Kopan, CNN

A federal appeals court struck another blow Thursday to the Trump administration’s efforts to pressure sanctuary cities, upholding a court order preventing the Justice Department from imposing conditions on grants to cities.

The three-judge panel from the 7th US Circuit Court of Appeals upheld a lower court’s decision blocking the Justice Department from adding new conditions on policing grants that had required some cooperation with federal immigration enforcement.

The ruling makes it the latest federal court, along with courts in California and Philadelphia, to restrict what the administration can try to do to pressure jurisdictions that restrict some cooperation with federal immigration enforcement.

It comes as President Donald Trump has been targeting his fury on Twitter at sanctuary cities, which administration officials accuse of jeopardizing public safety.

The judges sided with the city of Chicago in the case, which had challenged Attorney General Jeff Sessions’ July effort to condition the Edward Byrne Memorial Justice Assistance Grant Program on two new requirements: allowing federal immigration authorities access to local detention facilities and providing the Department of Homeland Security with at least 48 hours’ notice before local officials release an undocumented immigrant wanted by federal authorities.

The administration has been aggressive in asking cities to comply with those requests, but a number of cities and police chiefs around the country argue that cooperating in that way could jeopardize the trust police need to have with local communities, and in some cases could place departments in legal gray areas.

Like the district judge, the appellate judges found that Chicago was likely to succeed in its case that such conditions would be a violation of the Constitution and law, as Congress did not authorize those conditions when it created the grants.

The judge who wrote the opinion called the attorney general’s move a “usurpation of power.”

More: http://www.cnn.com/2018/04/19/politics/court-rules-against-trump-sessions-sanctuary-cities-chicago/index.html

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Our Attorney General continues to thumb his nose at the Constitution while wasting judicial time. That’s what the “rule of law” means in “Gonzoland.”

Here’s a link to the 7th Circuit’s full decision written by Judge Rovner.

7thChicagoSanctuaryInjunction

PWS

0-9-18

SUPREME BOMBSHELL: JUSTICE GORSUCH PROVIDES CRITICAL FIFTH VOTE FOR OVERTURNING DEPORTATION STATUTE FOR UNCONSTITUTIONAL VAGUENESS! — Administration Suffers Yet Another Legal Setback, This Time At the High Court! – Sessions v. Dimaya — Get The Full Opinion, Court Syllabus, Key Quotes, & My “Instant Analysis” HERE!

Dimaya–15-1498_1b8e

Sessions v. Dimaya, No. 15–1498, 04-17-18 (5-4 Decision)

Syllabus By Court Staff:

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the Unit- ed States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U.S.C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree bur- glary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar re-

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SESSIONS v. DIMAYA Syllabus

sidual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitu- tionally vague.

Held: The judgment is affirmed.

803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to

Parts I, III, IV–B, and V, concluding that §16’s residual clause is un- constitutionally vague. Pp. 6–11, 16–25.

(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residu- al clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judi- cial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncer- tainty, ACCA’s residual clause layered an imprecise “serious poten- tial risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” thresh- old is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. Pp. 6–11.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce imper- missible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16–24.

(1) First, the Government argues that §16(b)’s express require-

Cite as: 584 U. S. ____ (2018) 3

Syllabus

ment (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”— in other words, a court applying §16(b) may not “consider risks aris- ing after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any of- fense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the tem- poral language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the §16(b) inquiry, which focus- es on the risk of “physical force,” “trains solely” on the conduct typi- cally involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequenc- es. Thus, the force/injury distinction does not clarify a court’s analy- sis of whether a crime qualifies as violent.

Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16– 21.

(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21–24.

JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts II and IV–A:

(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed

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SESSIONS v. DIMAYA Syllabus

because the removal of an alien is a civil matter rather than a crimi- nal case. This Court’s precedent forecloses that argument. In Jor- dan v. De George, 341 U. S. 223, the Court considered what vague- ness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deporta- tion is “a particularly severe penalty,” which may be of greater con- cern to a convicted alien than “any potential jail sentence.” Jae Lee v.United States, 582 U. S. ___, ___. Pp. 4–6.

(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be aban- doned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact- based approach is an untenable interpretation of §16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical ap- proach. This Court’s decisions have consistently understood lan- guage in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.”Taylor v. United States, 495 U. S. 575, 601. And the words “by its na- ture” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinari- ly entails. Finally, given the daunting difficulties of accurately “re- construct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”— and associated inequities—is as great in §16(b) as in ACCA. John- son, 576 U. S., at ___. Pp. 12–15.

JUSTICE GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair- notice standard should apply where (as here) a person faces only civ- il, not criminal, consequences from a statute’s operation is unavail- ing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard

Cite as: 584 U. S. ____ (2018) 5

Syllabus

because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving ei- ther the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1–19.

KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opin- ion with respect to Parts II and IV–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined as to Parts I–C–2, II–A–1, and II–B.

Key Quote From Justice Kagan’s Majority (Pt. V):

Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA’s] residual clause con- spire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk thresh- old, it necessarily “devolv[ed] into guesswork and intui- tion,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA’s residual clause, §16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). We accordingly affirm the judgment of the Court of Appeals.

Key Quote From Justice Gorsuch”s Concurring Opinion:

Vague laws invite arbitrary power. Before the Revolu tion, the crime of treason in English law was so capa ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya sub ject to removal for having committed a crime, the Immi gration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

Key Quote From Chief Justice Roberts’s Dissenting Opinion:

The more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender “grave uncertainty about how to estimate the risk posed by a crime.” And the provision’s use of a commonplace sub- stantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.” That should be enough to reject Dimaya’s facial vagueness challenge.4

Because I would rely on those distinctions to uphold

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4 The Court also finds it probative that “a host of issues” respecting §16(b) “divide” the lower courts. Ante, at 22. Yet the Court does little to explain how those alleged conflicts vindicate its particular concern about the provision (namely, the ordinary case inquiry). And as the Government illustrates, many of those divergent results likely can be chalked up to material differences in the state offense statutes at issue. Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 783–785 (CA5 2012) (per curiam) (reasoning that New Mexico car burglary “requires that the criminal lack authorization to enter the vehicle—a require- ment alone which will most often ensure some force [against property] is used”), with Sareang Ye v. INS, 214 F. 3d 1128, 1134 (CA9 2000) (finding it relevant that California car burglary does not require unlaw- ful or unprivileged entry); see Reply Brief 17–20, and nn. 5–6.

14 SESSIONS v. DIMAYA ROBERTS, C. J., dissenting

§16(b), the Court reproaches me for not giving sufficient weight to a “core insight” of Johnson. Ante, at 10, n. 4; seeante, at 15 (opinion of GORSUCH, J.) (arguing that §16(b) runs afoul of Johnson “to the extent [§16(b)] requires an ‘ordinary case’ analysis”). But the fact that the ACCA residual clause required the ordinary case approach was not itself sufficient to doom the law. We instead took pains to clarify that our opinion should not be read to impart such an absolute rule. See Johnson, 576 U. S., at ___ (slip op., at 10). I would adhere to that careful holding and not reflexively extend the decision to a different stat- ute whose reach is, on the whole, far more clear.

The Court does the opposite, and the ramifications of that decision are significant. First, of course, today’s holding invalidates a provision of the Immigration and Nationality Act—part of the definition of “aggravated felony”—on which the Government relies to “ensure that dangerous criminal aliens are removed from the United States.” Brief for United States 54. Contrary to the Court’s back-of-the-envelope assessment, see ante, at 23, n.12, the Government explains that the definition is “critical” for “numerous” immigration provisions. Brief for United States 12.

In addition, §16 serves as the universal definition of “crime of violence” for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. See 18 U. S. C. §§25(a)(1), 842(p)(2), 1952(a), 1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). Of special concern, §16 is replicated in the definition of “crime of violence” applicable to §924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence,” or possessing a firearm “in furtherance of any such crime.” §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court’s holding calls into question convictions under what the Government warns us is an “oft-prosecuted offense.” Brief for United States 12.

Because Johnson does not compel today’s result, I respectfully dissent.

Key Quote From Justice Thomas’s Dissent:

I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b), as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ (2015). ACCA’s residual clause—a provision that this Court had applied four times before Johnson—was not unconstitu tionally vague either. See id., at ___ (THOMAS, J., concur ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J., dissenting) (slip op., at 13–17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the “‘sum’” of its specific features. Id., at ___ (majority opinion) (slip op., at 10). By ignoring this limitation, the Court jettisonsJohnson’s assurance that its holding would not jeopardize “dozens of federal and state criminal laws.” Id., at ___ (slip op., at 12).

While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that §16(b) is unconstitutionally vague be cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.

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Gee whiz, those Trumpsters and GOP Senators who were overflowing with their praise of Justice Gorsuch’s brilliance during his confirmation hearings must be beside themselves now that he joined the “Gang of Four” in striking down a statute in an immigration enforcement case!

I predicted early on that Gorsuch might surprise those on both sides who expected him to be a “complete Trump toady.” Indeed, the case that drove today’s decision in Dimaya, Johnson v. United States, was written by none other than Justice Scalia, one of Justice Gorsuch’s “juridical role models.” At bottom, Dimaya is all about strict adherence to the Constitution and separation of powers, two things that Gorsuch as extolled in past decisions.

No, I don’t think that Justice Gorsuch is likely to team up with Justices Kagan, Ginsburg, Breyer, and Sotomayor on most future immigration cases. But, I am encouraged that he seems to be going where his legal principles, whether one agrees with them or not, take him, rather than just voting to support the Administration’s hard-line immigration agenda as many had predicted and some had hoped or assumed would happen.

There are other important immigration cases before the Supremes where adherence to the literal language of a statute and skepticism about giving the Executive unbridled power under separation of powers could aid the respondent’s position. So, while this might not be a “normal” majority configuration, it could well be repeated in some future immigration case. Let’s hope so!

Interestingly, I had this issue come up in one of the last cases I wrote before retiring from the Arlington Immigraton Court. I noted that the respondent made a strong argument for unconstitutionality under Johnson v, United States. However, as an Immigration Judge, I had no authority to hold a statute unconstitutional (although, ironically, under today’s convoluted system, the respondent was required to make his constitutional argument before me to “preserve” it for review by the Court of Appeals). So, I merely “noted” the constitutional issue for those higher up the “judicial food chain” and decided the issue on the basis that burglary as defined under the state law in question was not categorically a “crime of violence” under the so-called “categorical approach.”

Two other points worth mentioning:

In this particular case, the Supremes upheld the ruling of the much maligned (particularly by Trump & Sessions) 9th Circuit Court of Appeals, having jurisdiction over California ;
This type of issue is frequently recurring in Immigration Court where many, perhaps the majority, of respondents are unrepresented. How would an unrepresented individual who does not even speak English make the type of sophisticated legal arguments that a) got this case to the Supremes in the first place, and b) persuaded the majority of the Court? Of course, they couldn’t. That’s why much of what is going on in today’s U.S. Immigration Courts is a farce — a clear violation of constitutional Due Process that the Federal Courts have been doing their best to ignore or gloss over for many decades.
As more light is shed on the much misunderstood U.S. Immigration Court system, both Congress and the Article III Courts must come to grips with the procedural, ethical, and fairness inadequacies built into today’s “captive” Immigration Courts and the utter lack of any concern about protecting the legal rights of migrants shown by Jeff Sessions and the rest of the Trump Administration. Shockingly, they have actually pledged to stomp on migrants already unfulfilled rights to fair hearings in the name of a “false efficiency.”
Join the “New Due Process Army” and help stop the continuing abuses of human rights, statutory rights, and constitutional rights of migrants by Sessions and the rest of the “Trump Scofflaws!”

PWS

04-17-18

WASHPOST: SEN DIANNE FEINSTEIN (D-CA) HITS A “HOME RUN” WITH OP-ED — NO, RIGHTS OF CHILD ASYLUM SEEKERS ARE NOT “LOOPHOLES” IN OUR IMMIGRATION LAWS! — What’s Happened To Our Common Sense & Humanity?

https://www.washingtonpost.com/opinions/protecting-defenseless-children-is-not-an-immigration-loophole/2018/04/13/11bf9012-3e64-11e8-a7d1-e4efec6389f0_story.html?utm_term=.8c9ed9210908

Sen. Feinstein writes:

Dianne Feinstein, a Democrat, represents California in the U.S. Senate.

I remember watching the nightly television news in the 1990s and seeing a 15-year-old Chinese girl trembling before a U.S. immigration judge. Despite having committed no crime, she was shackled and sobbing. She couldn’t speak English, and it was clear she had no understanding of what the judge was saying or what would happen to her.

Her parents had sent her to the United States in the cargo hold of a container ship because she had been born in violation of China’s rigid family-planning laws — and was therefore denied citizenship, access to health care and education.

By the time the girl appeared before the immigration judge, she had already been detained for eight months. Even more shocking: After she was granted political asylum, she was detained for four more months before she was released.

This situation would not be allowed to occur today because Congress has enacted laws to provide basic humanitarian protections to unaccompanied immigrant children.

The Trump administration recently reignited its attacks on these protections, with the president going so far as to call laws that protect helpless children “loopholes.”

The administration says these laws prevent immigrant children from being removed from the country, when in fact the goal is to ensure that these children are detained for as little time as possible and only in an appropriate setting, they receive adequate food and water, and that they are given the opportunity to apply for asylum.

Under these laws, each child has a right to make their case before a trained asylum officer. If the hearing demonstrates the need for protection by admission to the United States, we’re obligated to provide it. And in cases where a child does not qualify for asylum or other forms of relief, they’re returned safely to their home country.

I know the intent of these laws because I authored two of them. They are not loopholes.

It’s important to understand why Congress acted to thus ensure basic human dignity for children.

The story of the Chinese girl I saw on television was not unique — mistreatment of child immigrants was widespread. Another young girl who fled China was detained in a facility that also held minors who had been convicted of murder and rape. Despite never having violated criminal law or been accused of a crime, she was routinely handcuffed and strip-searched.

A young boy who fled Colombia after being targeted for recruitment by Revolutionary Armed Forces of Colombia guerrillas was held in the same detention facility for six months.

Children as young as 4 were held in secure prisons, isolated and forced to wear prison uniforms and shackles. Some were even placed in solitary confinement, even though they weren’t accused of any crime.

These stories, which were detailed by Human Rights Watch, illustrate decades of government mistreatment of children, and they were the genesis of laws Congress passed to guarantee minimum requirements for treating children humanely.

A key first step toward reform came in 1997, after years of litigation over treatment of unaccompanied minors, with a settlement called the Flores agreement. Among its provisions were requirements that the government release detained children to an adult as soon as possible, hold children who can’t be released in appropriate facilities and ensure that all facilities meet humane standard

Three years later, I introduced the Unaccompanied Alien Child Protection Act and was able to get portions of the bill included in the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008.

The two laws, combined with the Flores agreement, are intended to ensure children don’t fall through the cracks of a system that processes thousands of them each year.

They require that children under 18 be placed in the least restrictive setting that is in their best interests. Rather than holding children in detention facilities that also hold adults or criminal juvenile offenders, preference is given to releasing them to family members or appropriate sponsors, such as a family friend.

Such placements ensure that children aren’t held in indefinite detention pending resolution of their cases, which can sometimes take years. They also mean that taxpayers aren’t paying for that detention.

These aren’t loopholes, they are basic principles of common human decency. And to demonize and politicize these children is appalling.

Contrary to the picture painted by this administration, current policies don’t guarantee a child will be able to remain in the United States. Nor do these policies mean dangerous individuals are being released onto our streets.

The Trump administration’s efforts to repeal protections for children are based on an ignorance of history. The only effect of repeal would be more children held in unsafe conditions at exorbitant costs to the taxpayer.

I will oppose any efforts to change these laws, and I call upon my colleagues in Congress to join me in resisting efforts to roll back protections for immigrant children.

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Of all the depraved xenophobic, White Nationalist, racist ravings of Trump, Sessions, Homan, Neilsen, Kelly, Miller, Goodlatte, Cotton, and other GOP restrictionists, the war on defenseless children has to be the most totally despicable! Most of these kids are fleeing genuine dangers in their home countries. The real problem is that the US has intentionally, for political reasons, twisted refugee law so as to not recognize their legitimate status as refugees and asylees.

As someone said at an Asylum Conference I recently attended, the BIA must be the only 15 so-called “asylum experts” in the world who don’t recognize that those fleeing gang recruitment in the Northern Triangle fit squarely within the “particular social group” classification for asylum protection.

Even if they weren’t a direct fit, these children qualify for relief under the Convention Against Torture or should be given another type of humanitarian relief such as TPS or Deferred Enforced Departure. Screening them for background and rapidly admitting them into the U.S. in some status would prevent them from becoming part of the current politically created Immigration Court “backlog,” actually caused primarily by gross mismanagement, intentionally skewed anti-asylum legal interpretations, and political manipulation by this and past Administrations.

Of course the US could absorb them all, and prosper by doing so! Indeed, we’ve absorbed approximately 11 million individuals outside the system who have largely been a boon to our economy and our society. The real problem here is the White Nationalists who deny the reality of human migration and the inevitability of changing demographics, not the migrants themselves.

PWS

04-14-18

HUFFPOST: ICE DETAINS NJ TEACHER WHO FACES DEATH SENTENCE IN EGYPT FOR PRO-DEMOCRACY ACTIVISM!

https://www.huffingtonpost.com/entry/new-jersey-teacher-detained-egypt-death-sentence_us_5acfdbbee4b077c89ce6cd4f

Rowaida Abdelaziz reports for HuffPost

Ahmed Abdelbasit, a New Jersey teacher who faces a death sentence in Egypt for his pro-democracy activism, was detained last week outside his Jersey City apartment by U.S. Immigration and Customs Enforcement. Three days later, a notice came in the mail saying his asylum case had been transferred to an immigration court.

On that Thursday morning, seven plainclothes ICE officers demanded that Abdelbasit get into an unmarked car. Confused, the physics teacher complied, all while frantically texting his friends and co-workers to let them he would not be in class that day at a private Islamic school in Union City.

HuffPost has learned that Abdelbasit, 33, was taken to a detention center in Elizabeth, New Jersey, where he was forced to turn over his belongings and was given an orange jumpsuit to wear. Abdelbasit has been held there ever since.

ICE confirmed to HuffPost that he is being held at Elizabeth Detention Center on administrative immigration violations. ICE would not elaborate on what those violations were.

It was only after Abdelbasit was detained did his lawyer learn that his asylum case was transferred to immigration court in a notice that arrived three days after Abdelbasit’s arrest, HuffPost has learned, leaving the teacher and his lawyer with more questions than answers.

“It’s not clear why they would feel the need to detain somebody who has no criminal record in the United States, who has been living a very law-abiding life here and has been doing everything correctly,” Anwen Hughes, Abdelbasit’s lawyer and the deputy legal director at Human Rights First, told HuffPost. “It’s very unclear why this happened. What we’re trying to find out at the moment is what the actual basis is for this.”

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Read the complete report at the link.

Based on the information in the report, it’s not obvious why ICE would choose to detain this individual. But, of course, we don’t know all of the facts at this point.

PWS

04-13-18

HON. ROBERT VINIKOOR TELLS US EXACTLY WHY QUOTAS ARE A TOXIC IDEA FOR US IMMIGRATION COURTS — One Of the “Best Ever” Tells It Like It Is!

https://www.mmhpc.com/2018/04/take-it-from-a-former-judge-quotas-for-immigration-judges-are-a-bad-idea/

Judge (Ret.) Vinikoor writes:

Take it from a former judge: Quotas for Immigration Judges are a Bad Idea.

On March 30^th, the U.S. Department of Justice and Attorney General Sessions announced that Immigration Judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregards due process. As a recently retired immigration judge, I believe this decision is short sighted and not fair to judges, or to the parties that appear in court on either side (government or immigrant and their families), or to our legal system.

Attorney General Sessions says that the current back log in immigration courts is a primary reason for this entirely new quota system; however, I know from experience that quotas will not reduce backlog and will in fact increase our current backlog problems. About 15 years ago, former Attorney General John Ashcroft attempted to reduce backlogs at the Board of Immigration Appeals (the court that hears all the appeals from immigration judges’ decisions). Ashcroft eliminated the Board’s authority to review de novo (or, review as if hearing the case for the first time) decisions of the Immigration Judges with regard to findings of fact and determination of an immigrant respondent’s credibility. As a result, the Board began issuing summary two page decisions, with little or no legal analysis. Those shortened decisions did reduce the amount of time cases were pending before the Board of Immigration Appeals, but had the opposite effect on the actual backlog of immigration cases as thousands of petitions for review were filed throughout the country with the Courts of Appeal. Given the increase in the number of filings and the decrease in the thoroughness of the decision, the Courts of Appeal became extremely hostile to the quality, professionalism and final agency work product of the immigration court judges and particularly the Board. Many cases were remanded, or sent back to immigration judges, for new hearings based on perceived mistakes at the trial level or at the Board, resulting in further delays in court processing times and the issuance of final decisions.

Attorney General Sessions would do well to learn from his predecessor’s mistake. Sessions’ mandate that the judges decide cases “faster” and more “efficiently” ignores the fact that the immigration court judges are currently rendering decisions in a timely manner. However, immigration judges must also follow the constraints of due process, which means giving both sides an opportunity to present their case and then for the judge to fully consider the applicable law and issue a thoughtful decision. A system that evaluates immigration judge performance based on how fast they can complete cases will certainly undermine the quality and thoroughness of decisions. Current law and our legal system requires full and fair hearings, followed by a well-reasoned decision that is consistent with the facts and relevant law. An immigration judge should be evaluated based on quality not quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. As we have seen before, poor decisions will directly result in more appeals to the Board of Immigration Appeals and the Courts of Appeal, causing more delays and running contrary to the goals of the Attorney General.

An equally troubling consequence of the case completion requirement is the possibility of a judge’s decision being influenced by factors outside the facts of the case. For example, the court is asked for a continuance in many cases to await action or decision by the U.S. Citizenship and Immigration Services (USCIS) on pending applications. Such applications are “u” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to US citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of his concern about his completion numbers and keeping his job. That is not justice; it seems more like an assembly line. Similarly, in some cases a continuance may be necessary because of the need for additional evidence or because of a witness’s unavailability. But now, a judge will be hesitant to grant such a continuance if she is concerned about his completion numbers, salary, or job security.

Additionally, an arbitrary case completion number of 700 ignores the wide disparity of cases appearing before the immigration courts. Unrepresented cases at the border or cases in detention often are completed in expedited fashion where little or no relief is sought. However, in many of the interior courts, such as in Chicago where I was a judge, most applicants are represented, present multiple witnesses including experts, and submit sophisticated legal arguments requiring extended trial time. These interior courts complete far less merit cases than at the border, yet the decisions often involve more complex legal issues. To provide context, I’d guess that judges in the interior, working the same hours and pace as judges on the border, probably complete 400 or 500 cases per year. To average the nationwide completion rate completely ignores the wide disparity of decision complexity required in different parts of the country.

Finally, the new quotas are an affront to due process and our legal system. Immigration judges are required by law and the Constitution’s Fifth Amendment to exercise due process in all cases, considering all the facts of case. Judges currently do this and issue decisions in an expeditious manner as soon as possible; judges do not purposefully stall cases. Putting artificial pressure on judges to complete cases more quickly is wrong; Attorney General Sessions is essentially asking the judges to short cut or violate due process, by disregarding thoroughness, fairness, and litigants’ opportunity to be heard, and abandon current law-abiding procedures for case adjudication.

In short, I believe the administration’s plan to impose numeric quotas on immigration judges will not speed up “deportations” if this is their goal, and may result in unforeseen consequences that actual delay the fair hearing process that presently exists.

Judge Vinikoor joined the law firm of Minsky, McCormick & Hallagan, P.C., in 2017 after serving over 30 years as an Immigration Judge.

Judge Vinikoor was appointed as an Immigration Judge in January 1984. During his long tenure on the immigration bench, Judge Vinikoor has authored numerous precedent deciding cases covering topics such as crimes involving moral turpitude, aggravated felony offenses, frauds committed at time of entry and/or adjustment and claims to U.S. citizenship. Judge Vinikoor’s decisions helped define the age limitations for K-4 beneficiaries seeking adjustment of status, the use of Section 245(i) to waive inadmissibility, and the scope of numerous discretionary waivers. A number of published opinions have addressed Judge Vinikoor’s expert analysis in cases involving burden of proof, marriage fraud, and Section 216(c)(4) evidence. During the past 30 years Judge Vinikoor has heard evidence in asylum cases from around the world. His decisions have led to a better understanding of the scope and evidence needed to qualify as a “refugee” under the Immigration and Nationality Act. Upon his retirement from the bench, he was the second most senior Immigration Judge in the country.

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Prior to his retirement in 2017, my good friend and colleague Judge Bob Vinikoor was one of the most widely respected, indeed revered, U.S. Immigration Judges. Indeed, at the time of his retirement, he was #2 in seniority among all U.S. Immigration Judges.

He was widely known for his fairness, scholarship, kindness, practical wisdom, humor, and ability to “move” a docket while respecting everyone’s rights. In a rational judicial system, those in charge would be looking for a way to “clone” someone like Judge Vinikoor and use his knowledge and skills to teach and mentor younger judges, rather than letting him pass into retirement.

In the “Age of Trump & Sessions” — with a blatant effort underway to “dumb down” the U.S. Immigration Judiciary and reduce it to an assembly line operation — it’s highly unlikely that there will be more Judge Vinikoors. That’s a huge loss for everyone, but particularly for the cause of justice in America and for those who depend on the Immigration Court system to deliver potentially life saving Due Process and fairness!

PWS

04-12-18

FORMER NAIJ PRESIDENT JUDGE DANA LEIGH MARKS SPEAKS OUT AGAINST JUDICIAL QUOTAS! — “The measure of a good judge is his or her fairness, not the number of cases he or she can do in a day.” – This Seems Obvious – So Why Is “Gonzo Apocalypto” Sessions Being Allowed to Run Roughshod Over Justice In Our U.S. Immigration Courts?

http://fortune.com/2018/04/09/immigration-judge-quotas-department-of-justice/

Judge Marks writes in Fortune:

Immigration judges are the trial-level judges who make the life-changing decisions of whether or not non-citizens are allowed to remain in the United States. They are facing a virtual mountain of cases: almost 700,000 for about 335 judges in the United States. The work is hard. The law is complicated. The stories people share in court are frequently traumatic and emotions are high because the stakes are so dire. Because these are considered civil cases, people are not provided attorneys and must pay for one, find a volunteer, or represent themselves.

In a move that the Department of Justice claims is intended to reduce this crushing backlog, the DOJ is moving forward with a plan to require judges to meet production quotas and case completion deadlines to be rated as satisfactory in order to keep their jobs. This misguided approach will have the opposite effect.

One cannot measure due process by numbers. The primary job of an immigration judge is to decide each case on its own merits in a fair and impartial way. That is the essence of due process and the oath of office we take. Time metrics simply have no place in that equation. Quality measurements are reasonable, and immigration judge performance should be evaluated, but by judicial standards, which are transparent to the public and expressly prohibit quantitative measures of performance. The imposition of quotas and deadlines forces a judge to choose between providing due process and pushing cases to closure without considering all the necessary evidence.

If quotas and deadlines are applied, judicial time and energy will be diverted to documenting our performance, rather than deciding cases. We become bean-counting employees instead of fair and impartial judges. Our job security will be based on whether or not we meet these unrealistic quotas and our decisions will be subjected to suspicion as to whether any actions we take, such as denying a continuance or excluding a witness, are legally sound or motivated to meet a quota. Under judicial canons of ethics, no judge should hear a case in which he or she has a financial interest. By tying the very livelihood of a judge to how quickly a case is pushed through the system, you have violated the fundamental rule of ensuring an impartial decision maker is presiding over the case.

These measures will undermine the public’s faith in the fairness of our courts, leading to a huge increase in legal challenges that will flood the federal courts. Instead of helping, these doubts will create crippling delays in our already overburdened courts. If history has taught us any lessons, it is that similar attempts to streamline have ultimately resulted in an increase in the backlog of cases.

The unacceptable backlogs at our courts are due to decades of inadequate funding for the courts and politically motivated interference with docket management. The shifting political priorities of various administrations have turned our courts into dog and pony shows for each administration, focusing the court’s scant resources on the cases ‘du jour,’—e.g., children or recent border crossers—instead of cases that were ripe for adjudication.

The solution to the delays that plague our courts is not to scapegoat judges. The solution is two-part: more resources and structural reform. We need even more judges and staff than Congress has provided. Additionally, the immigration courts must be taken out of the Department of Justice, as the mission of an independent and neutral court is incompatible with the role of a law enforcement agency. This latest, misguided decision to impose quotas and performance metrics makes that conclusion clear and highlights the urgent need for structural reform. The measure of a good judge is his or her fairness, not the number of cases he or she can do in a day.

Dana Leigh Marks is president emeritus of the National Association of Immigration Judges and has been a full-time immigration judge in San Francisco since 1987. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

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For those of you who don’t know her, my friend and colleague Dana is not just “any” U.S. Immigration Judge. In addition to her outstanding service as a Immigration Judge and as the President of the NAIJ, as a young attorney, then known as Dana Marks Keener, she successfully argued for the respondent in the landmark Supreme Court case INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

That case for the first time established the generous “well-founded fear” standard for asylum seekers over the objections of the U.S. Government which had argued for a higher “more likely than not” standard. Ironically, it is exactly that generous treatment for asylum seekers mandated by the Supreme Court, which has taken more than four decades to come anywhere close to fruition, that Sessions is aiming to unravel with his mean-spirited White Nationalist inspired restrictionist agenda at the DOJ.

Interestingly, I was in Court listening to the oral argument in Cardoza because as the then Acting General Counsel of the “Legacy INS” I had assisted the Solicitor General’s Office in formulating the “losing” arguments in favor of the INS position that day.

Due Process Forever! Jeff Sessions Never! Join the New Due Process Army and stand up against the White Nationalist restrictionist attack on America and our Constitution!

PWS

04-11-18

GONZO’S WORLD: LATEST DUE PROCESS OUTRAGE: ATTACK ON LEGAL RIGHTS PROGRAM IN IMMIGRATION COURT — Dumping On The Most Vulnerable & Those Trying To Help Them Is A Gonzo Specialty! — “This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.

https://www.washingtonpost.com/local/immigration/justice-dept-to-halt-legal-advice-program-for-immigrants-in-detention/2018/04/10/40b668aa-3cfc-11e8-974f-aacd97698cef_story.html?utm_term=.c604b3ff4532

Maria Sacchetti reports for the Washington Post:

The U.S. immigration courts will temporarily halt a program that offers legal assistance to detained foreign nationals facing deportation while it audits the program’s cost-effectiveness, a federal official said Tuesday.

Officials informed the Vera Institute of Justice that starting this month it will pause the nonprofit’s Legal Orientation Program, which last year held information sessions for 53,000 immigrants in more than a dozen states, including California and Texas.

The federal government will also evaluate Vera’s “help desk,” which offers tips to non-detained immigrants facing deportation proceedings in the Chicago, Miami, New York, Los Angeles and San Antonio courts.

The Executive Office for Immigration Review, which runs the Justice Department’s immigration courts, said the government wants to “conduct efficiency reviews which have not taken place in six years.” An immigration court official, who spoke on the condition of anonymity because the audit has not been formally announced, said the review will examine the cost-effectiveness of the federally funded programs and whether they duplicate efforts within the court system. He noted, for example, that immigration judges are already required to inform immigrants of their rights before a hearing, including their right to find a lawyer at their own expense.

But advocates said the programs administered by Vera and a network of 18 other nonprofits are a legal lifeline for undocumented immigrants.

“This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.

In a statement, the Vera Institute said a 2012 study by the Justice Department concluded that the program was “a cost-effective and efficient way to promote due process” that saved the government nearly $18 million over one year.

The Trump administration has also clashed with the Vera Institute over whether its subcontractors were informing undocumented immigrant girls in Department of Health and Human Services custody about their right to an abortion. The issue was later resolved.

The Justice Department is ramping up efforts to cut an immigration court backlog of 650,000 cases in half by 2020. Attorney General Jeff Sessions last week imposed production quotas on immigration judges to spur them to clear cases more quickly.

Immigration courts are separate from U.S. criminal courts, where defendants are entitled to a government-appointed lawyer if they cannot pay for their own legal counsel.

The Vera Institute said approximately 8 in 10 detainees in immigration court face a government prosecutor without a lawyer.

The Executive Office for Immigration Review says on its website that it launched the legal-aid program in 2003, during the administration of George W. Bush, to orient immigrants so that court proceedings would move more quickly.

In Vera’s Legal Orientation Program, lawyers and others hold hour-long group information sessions with detainees to explain their rights, how the court process works and their possible defenses to deportation in federal law, such as seeking asylum if they are in fear for their lives. They also meet with detainees individually and refer detainees to free or low-cost lawyers, but do not represent them in court.

“Experience has shown that the LOP has had positive effects on the immigration court process: detained individuals make wiser, more informed, decisions and are more likely to obtain representation; non-profit organizations reach a wider audience of people with minimal resources; and, cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention,” the agency’s website says.

The help desk answers questions and provides similar information to immigrants who are not detained but are facing deportation.

Maria Sacchetti covers immigration for The Washington Post. She previously reported for the Boston Globe.

Follow @mariasacchetti

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

The idea expressed by an “anonymous” DOJ official that the brief, often rote “in court” warnings given by Immigration Judges in open court can take the place of a “Know Your Rights” session being conducted in advance, out of court by Vera is preposterous. The “average” initial hearing or “Master Calendar” takes fewer than 10 minutes. My former Arlington Immigration Court colleague Judge Lawrence O. Burman was once “clocked” by a reporter at seven minutes per case, and he is probably more thorough than most Immigration Judges. Moreover, with Immigration Judges being pressured to churn out more final orders of removal faster, required warnings are just one of the aspects of Due Process that are likely to be truncated as Sessions’s “haste makes waste” initiative continues to destroy even the appearance of justice in our U.S. Immigration Courts.

In other words this totally bogus “audit” couldn’t come at a worse time for the beleaguered Immigration Judges of the U.S. Immigration Courts and particularly the often defenseless immigrants who come before them seeking (but far too often not finding) the justice supposedly “guaranteed” to them by our Constitution.

In my long experience, “Know Your Rights” presentations, which often allowed individuals to assess their cases and retain lawyers before their first Immigration Court appearance were one of the best “bang for the buck” programs ever undertaken by EOIR. Immigration Judges relied heavily on them to “keep the line moving” without denying due process.

Sessions methodically is stripping U.S. Immigration Judges of the tools that allow them to do their jobs fairly and efficiently: administrative closing, continuances, ability to control their own court schedules, time and resources to do research and write opinions, and now the assistance of the “Know Your Rights” Programs.

Harm to the most vulnerable among us is harm to all. Jeff “Gonzo Apocalypto” Sessions is a coward who consistently uses bogus narratives and specious reasons to pick on the most vulnerable in our legal system. Join the New Due Process Army and stand up to Gonzo and his anti-American, anti-Constitutional, anti-human agenda! Today, Gonzo is eliminating immigrants’ rights. Tomorrow it will be YOUR RIGHTS. Who will stand up for YOU if you remain silent while the weak and dispossessed are attacked by Gonzo and his ilk!

PWS

04-11-18

HON. JEFFREY CHASE: Sessions’s Quotas Attack Fairness, Due Process, Undermine U.S. Immigration Court System!

https://www.jeffreyschase.com/blog/2018/4/7/eoir-imposes-completion-quotas-on-ijs

Apr 7 EOIR Imposes Completion Quotas on IJs

Ten years ago, the U.S. Court of Appeals for the Third Circuit decided Hashmi v. Att’y Gen. of the U.S.1 The case involved a request to continue a removal proceeding which the Department of Homeland Security did not oppose. The respondent was married to a U.S. citizen; he would become eligible to adjust his status in immigration court once the visa petition she had filed on his behalf was approved by DHS. However, the approval was delayed for reasons beyond the respondent’s control. One of those reasons was that a part of the respondent’s DHS file was needed by both the office in Cherry Hill, NJ adjudicating the visa petition and the DHS attorney in Newark prosecuting the removal case.

The immigration judge decided that he could wait no longer. Noting that the pendency of the case had exceeded the agency’s stated case completion goals, the judge denied the continuance and ordered the respondent deported. The U.S. Court of Appeals for the Third Circuit reversed, holding that “to reach a decision about whether to grant or deny a motion for a continuance based solely on case-completion goals, with no regard for the circumstances of the case itself, is impermissibly arbitrary.”

In response to Hashmi, the BIA issued a precedent decision stating that unopposed motions of that type should generally be granted.2 In subsequent decisions, the BIA provided further guidance in allowing IJs to make reasonable determinations to continue such cases,3 and to administratively close proceedings where it would further justice (as in Hashmi, where the need for the DHS file to be in two places at once was preventing the case from proceeding).4

In subjecting immigration judges to strict, metrics-based reviews last week, EOIR’s director, James McHenry, may pressure immigration judges into taking the types of actions barred by Hashmi. Under the newly-announced metrics, individual judges may run the risk of disciplinary action for granting reasonable requests for continuance, or for other delays necessary for reaching a fair result. The combined actions of McHenry (who prior to being promoted to the position of agency director had worked for EOIR for approximately 6 months as an administrative law judge with OCAHO, the only component of EOIR that doesn’t deal with immigration law or the immigration courts), and Attorney General Jeff Sessions in recently certifying four BIA decisions to himself, could erase the above positive case law developments of the past decade, and replace them with an incentive for rushed decisions that do not afford adequate safeguards to non-citizens facing deportation.

Allowing reasonable continuances for the parties to obtain counsel, present evidence, and formulate legal theories, or to allow other agencies to adjudicate applications impacting eligibility, is an essential part of affording justice. Judges also need to fully understand the legal arguments presented. When an issue arises in the course of a hearing, it is not uncommon for a judge to ask the parties for briefs, and for the judge to then conduct his or her own legal research before deciding the matter. A detailed decision is also necessary to allow for meaningful review on appeal. However, all of this takes time, and the performance of individual judges will be found to be unsatisfactory or in need of improvement if they complete less than 700 cases per year, complete less than 95 percent of cases at their first merits hearing, or have 15 percent of their cases remanded on appeal.

Some recently reported actions by immigration judges in the name of expediency are troubling. Last Sunday’s episode of Last Week Tonight with John Oliver (for which my colleague Carol King and I served as subject-matter sources) featured a credible-fear review hearing by an immigration judge that lasted one minute and 43 seconds in its entirety (and was probably doubled in length by the need for an interpreter). The judge asked the unrepresented respondent a total of two questions before reaching this decision: “Well, the government of the United States doesn’t afford you protection for this type of reason. I affirm the Asylum Officer’s decision.” It’s not clear how the judge could have been confident in such conclusion. The respondent was detained and had not yet had an opportunity to consult with counsel. Her claim was only sketched in the broadest outline; upon further development by an attorney, it may well have fallen into the “type of reason” for which asylum may be granted. Her credibility was never doubted; in fact, the program reported that she was assaulted at gunpoint by the man she fled after she was deported to her country.

In another case arising in the Ninth Circuit, C.J.L.G. v. Sessions,5 an immigration judge told the mother of a child in removal proceedings who was unable to retain counsel that she could represent her son, and proceeded with the child’s asylum hearing. Of course, the mother was not qualified for the task. Although the son had been threatened with death for resisting gang recruitment efforts, he was denied asylum in a hearing in which many critical questions that could have helped develop a nexus between his fear and a legally protected ground for asylum were never asked. This occurred because the judge did not feel that he could grant another continuance to provide the respondent an additional opportunity to retain counsel.

All of the above-described actions by IJs occurred prior to last week’s announcement by the EOIR director. Should judges struggling to meet the benchmarks feel their job security to be at risk, will actions such as those described above become the norm?

As previously mentioned, the Attorney General certified four decisions of the BIA to himself shortly before the director’s announcement of the new metrics. In one of those cases, Matter of E-F-H-L-,6 Sessions vacated a 2014 BIA precedent decision requiring immigration judges to provide asylum applicants a full hearing on their claim. In another, Matter of A-B-,7 Sessions chose a case in which the BIA twice reversed an immigration judge’s denial of asylum to a victim of domestic violence, and on certification has made the case a referendum on whether victims of private criminal activity may constitute a particular social group for asylum purposes.

Should Sessions decide this issue in the negative, the two decisions taken together may allow for the type of quick denials of the “Government…doesn’t afford you protection for this type of reason” variety discussed above. Fair-minded judges who will continue to hold full hearings and consider legal arguments in favor of granting relief may find it more difficult to meet all of the above benchmarks.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

Notes:

531 F.3d 256 (3d Cir. 2008)

Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).

See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) (concerning continuances due to pending employment-based visa petitions) ; Matter of C-B-, 25 I&N Dec. 888 (BIA 2012) (requiring reasonable and realistic continuances to obtain counsel); Matter of Montiel, 26 I&N Dec. 555 (BIA 2015) (allowing delaying proceedings for adjudication of criminal appeals).

See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).

No. 16-73801 (9th Cir. Jan. 29, 2018); Pet. for rehearing and rehearing en banc pending.

27 I&N Dec. 226 (A.G. March 5, 2018)

27 I&N Dec. 227 (A.G. March 7, 2018)

JEFF CHASE

JULIE HIRSHFIELD DAVIS IN THE NYT: TRUMP’S BOGUS ORDER ON SO-CALLED “CATCH & RELEASE” DOESN’T ACTUALLY DO MUCH BUT COULD BE PRELUDE TO ALL OUT ASSAULT BY OUR ROGUE, SCOFFLAW ADMINISTRATION ON CONSTITUTION AND LAWS LIMITING CIVIL DETENTION & GRANTING A FAIR RIGHT TO APPLY FOR ASYLUM!

https://www.nytimes.com/2018/04/06/us/politics/trump-immigration-policy.html?smprod=nytcore-ipad&smid=nytcore-ipad-share

Julie Hirshfield Davis reports for the NY Times:

President Trump issued a memorandum on Friday directing his administration to move quickly to bring an end to “catch and release,” the practice by which immigrants presenting themselves at the border without authorization are released from detention while waiting for their cases to be processed.

The directive does not, on its own, toughen immigration policy or take concrete steps to do so; it merely directs officials to report to the president about steps they are taking to “expeditiously end ‘catch and release’ practices.” But it is a symbolic move by Mr. Trump to use his executive action to solve a problem that he has bitterly complained Congress will not.

It also caps a week that began with the president offering tough talk on immigration and ended with his ordering the National Guard to patrol the southwestern border, a move formalized on Friday night when Defense Secretary Jim Mattis signed orders to deploy up to 4,000 troops.

“The safety and security of the American people is the president’s highest priority, and he will keep his promise to protect our country and to ensure that our laws are respected,” Sarah Huckabee Sanders, the White House press secretary, said in a statement announcing the memorandum.

“At the same time, the president continues to call on congressional Democrats to cease their staunch opposition to border security and to stop blocking measures that are vital to the safety and security of the United States,” she added.

The memo appears intended to prod the administration to move more rapidly in cracking down on unauthorized immigrants at the border, a goal laid out in an executive order Mr. Trump issued last year during his first week in office.

The latest directive instructs the Departments of Homeland Security, Defense, Justice and Health and Human Services to report to the president within 45 days on their efforts to ensure that those immigrants are detained, including steps taken to allocate money to build detention facilities near the borders. The agencies must also detail efforts to ensure unauthorized entrants do not “exploit” parole and asylum laws to stay in the United States, including evaluating how they determine whether migrants have “credible fear” of returning to their country of origin — the legal bar that people claiming asylum must meet to avoid prompt removal.

The memo also orders a list of existing facilities, including military sites, that could be used to detain those violating immigration law, and detailed statistics on credible claims of fear and how they have been processed since 2009.

The directive gives officials 75 days to report to Mr. Trump on additional resources or authorities they need to end catch-and-release practices. And within 60 days, it asks the secretaries of state and homeland security to submit a report on actions they are taking against countries that “refuse to expeditiously accept the repatriation of their nationals,” including whether the United States has punished them by refusing to grant visas to their citizens — and if not, why not.

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

The Trump Administration already stands credibly accused in at least one pending court case of violating its legal duty to consider asylum claims by individuals who apply at ports of entry on the Southern Border. Obviously, such legal violations by our Government promote illegal entry as the only way to vindicate statutory rights. Trump’s outrageous creation of a “false crisis” at the Southern Border should prompt the Article III Federal Courts to enjoin the Administration to comply with the asylum law.

Moreover, further attempts to manipulate the “credible fear” criteria against asylum seekers should also lead to Federal Court review and action against the Administration if, as appears likely, it uses biased criteria to deny the legal right of individuals in the U.S. or at the border to apply for asylum.

Moreover, asylum applicants who are “in the United States” whether legally or illegally and are in Removal Proceedings are entitled to an individualized bond consideration (unless they are serious criminals or security risks — the overwhelming number of asylum applicants are neither). Attempts to manipulate bond criteria (which have been undertaken to some extent by the last three Administrations) have almost uniformly been rejected by the Article III Federal Courts.

Therefore, the Administration’s legal options might be limited. However, the Administration arguably might have authority under current law to detain asylum applicants who arrive at ports of entry without providing any rational reasons for doing so. That’s likely to be a hotly contested issue in litigation.

Meanwhile, it’s critically important for those of us who support American values and see through the charade being put on by the Trump Administration to elect only U.S. Senators and Representatives who will “Just Say No” to the Administration’s bogus requests for: 1) more unneeded DHS enforcement personnel; and 2) more unneeded detention space in the “New American Gulag” being created by Trump and his White Nationalist reactionaries.

Harm to the most vulnerable is harm to all of us! Join the New Due Process Army and resist the Trump Administration’s contrived assault on America! Due Process Forever! Trump & Sessions Never!

PWS

04-07-18

TRUMP ADMINISTRATION’S UGLINESS IS EVERYWHERE IN AMERICA! – Beloit College Grad/Honorably Discharged Army Vet Target For ICE Removal Despite Mattis’s Assurances To The Contrary!

http://www.washingtonpost.com/people/alex-horton

Alex Horton reports for the Washington Post:

Immigration and Customs Enforcement appears to have ignored a directive from prevent the deportation of noncitizen troops and veterans, seeking to remove a Chinese immigrant despite laws that allow veterans with honorable service to naturalize, court filings show.

Xilong Zhu, 27, who came from China in 2009 to attend college in the United States, enlisted in the Army and was caught in an immigration dragnet involving a fake university set up by the Department of Homeland Security to catch brokers of fraudulent student visas.

Zhu paid tuition to the University of Northern New Jersey, created by DHS to appear as a real school, long enough to ship to basic training using the legal status gained from a student visa issued to attend that school.

Then ICE found him and asked the Army to release him for alleged visa fraud. He left Fort Benning, Ga., on Nov. 10, 2016, in handcuffs as an honorably discharged veteran. He was detained for three weeks and released.

Zhu is waiting for a Seattle judge’s ruling on his removal proceedings, which are based on allegations by ICE that he failed to attend classes in violation of his student visa. His attorney says his client is a victim of federal entrapment.

Zhu’s case comes amid Trump administration pressure on immigration judges to speed up deportation proceedings in an apparent move to adjudicate more removals, aligning with President Trump’s stated goals.

But it also comes after Mattis said he would protect certain immigrant recruits who enlist through a program designed to trade fast-tracked citizenship for medical and language skills. Those assurances followed sustained controversy over how the Pentagon has exposed more than a thousand foreign-born recruits to deportation. A background-screening logjam began in late 2016 when fears of insider threats slowed clearances to a glacial pace.

[ A deported veteran has been granted U.S. citizenship, after 14 years of living in Mexico ]

“Anyone with an honorable discharge … will not be subject to any kind of deportation,” Mattis told reporters at the Pentagon in February, describing exceptions for those who commit a “serious felony” and anyone who has been authorized for deportation in an agreement he said was made with DHS Secretary Kirstjen Nielsen.

Zhu’s attorney, retired Army officer Margaret Stock, told The Washington Post those exceptions do not apply to him.

DHS referred questions to U.S. Citizenship and Immigration Services. Spokesman Jonathan Withington declined to comment, citing the pending litigation. ICE declined to provide a comment attributable by name.

But through court documents, ICE has interpreted the Mattis directive applies to a narrow group of foreign recruits that exclude Zhu. It’s unclear whether ICE consulted with the Pentagon on the subject, or if the agency has moved to deport other immigrant recruits since Mattis spoke in February.

Xilong Zhu at Army basic training graduation in 2016. (Xilong Zhu)

Zhu graduated from basic training on June 9, 2016, and was handed over to ICE custody months later, after the Army lost a battle to retain him, Stock said. Zhu was included in a group of “holdovers,” an Army term he disdains that refers to soldiers who fail training.

That wasn’t him.

“It made me nauseous to be lumped into that group,” he told The Post.

How Zhu got in his predicament is a strange, bureaucratic odyssey after he graduated from Beloit College in Wisconsin in 2013. He wanted to become a U.S. citizen, so he decided to enlist through the Military Accessions Vital to the National Interest (MAVNI) program that his father in China had read about. It trades expedited citizenship for language and medical skills in short supply among U.S.-born recruits.

. . . .

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

Gee whiz, I thought that spending a week with the grandchildren in Beloit, Wisconsin might get us away from most of the Trump zaniness. But, no such luck as this story about a Beloit College graduate hit during the week. No end to the ways that ICE can think up to waste taxpayer money, clog already overwhelmed Immigration Court dockets with cases that no responsible prosecutor would even file, and exhibit mindless cruelty and irrationality in the process. Small wonder that some pols are starting to suggest that American would be safer and better off without ICE.

PWS

04-06-18

BIA WRONG AGAIN – 9TH CIR. VACATES MATTER OF G-G-S-, 26 I&N DEC. 339 (BIA 2014) (“PARTICULARLY SERIOUS CRIME”) — GOMEZ-SANCHEZ V. SESSIONS – As Jeff Sessions Plans To Speed Up The System, Rig Law Against Individuals, & Undermine Due Process, The “REAL” Courts Continue To Highlight Serious Substantive Flaws In Immigration Court System That Sessions Is Attempting To Cover Up!

GGS,9TH14-72506

Gomez-Sanchez v. Sessions, 9th Cir., 04-06-18, Published, vacating Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014)

COURT STAFF SUMMARY:

The panel granted Guillermo Gomez-Sanchez’s petition for review of the published decision of the Board of Immigration Appeals, Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014), which concluded that Gomez-Sanchez was statutorily ineligible for withholding of removal because he was convicted of a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B), and vacated and remanded.

Gomez-Sanchez was convicted of assault with a non- deadly firearm weapon in violation of California Penal Code § 245(a)(1), which the BIA concluded constituted a particularly serious crime that prevented Gomez-Sanchez from being eligible for withholding of removal. In reaching this decision, the BIA held that a petitioner’s mental health could not be considered when addressing whether he had committed a particularly serious crime.

The panel held that Matter of G-G-S- was not entitled to deference under Chevron U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837 (1984). Under step one of Chevron, the panel concluded that Matter of G-G-S-’s blanket rule against considering mental health is contrary to Congress’s clearly expressed intent that the particularly serious crime determination, in cases where a conviction falls outside the only statutorily enumerated per se category of particularly serious crimes, requires a case-by-case analysis. The panel also concluded that, even if Matter of G-G-S- were to survive step one of Chevron, it would fail at step two because the BIA’s interpretation is not reasonable in that the BIA’s two rationales for its broad rule – 1) that the Agency could not reassess a criminal court’s findings, and 2) that mental health is never relevant to the particularly serious crime determination – are unpersuasive and are inconsistent with the law of this Circuit and the BIA’s own decisions.

*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

PANEL:

Before: Kim McLane Wardlaw* and Michelle T. Friedland, Circuit Judges, and Janet Bond Arterton,**District Judge.

* This case was submitted to a panel that included Judge Kozinski, who recently retired. Following Judge Kozinski’s retirement, Judge Wardlaw was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Wardlaw has read the briefs, reviewed the record, and listened to oral argument.

** The Honorable Janet Bond Arterton, United States District Judge for the District of Connecticut, sitting by designation.

OPINION BY:

Judge Janet Bond Arterton

KEY QUOTES:

Against this backdrop, the BIA here announced and applied a blanket rule against considering an individual’s mental health as a factor when deciding whether his or her crime of conviction is particularly serious. Matter of G-G-S-, 26 I. & N. Dec. at 339, 347.4 This decision is contrary to Congress’s clearly expressed intent that the analysis of whether a crime is particularly serious “requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress,” Blandino- Medina, 712 F.3d at 1345, because such categorical rules undermine the ability of the agency to conduct a case-by- case analysis in each case, see Konou, 650 F.3d at 1128; see also Arteaga De Alvarez, 704 F.3d at 740.

. . . .

Here, the Board cited In re N-A-M- approvingly, as if applying it. See Matter of G-G-S-, 26 I. & N. Dec. at 343. However, in reality, its decision to constrain the evidence IJs may consider when making a particularly serious crime determination is at least inconsistent with, if not directly in contradiction with its earlier holding permitting consideration of “all reliable information.” See In Re N-A- M-, 24 I. & N. Dec. at 338, 342. Petitioner’s case makes this inconsistency clear—despite not disputing the reliability of the information Petitioner submitted concerning his mental illness, the Board entirely precluded consideration of that evidence. Given that the Board made no attempt to address the apparent inconsistencies between its earlier rule and the rule at issue here, we find its current interpretation to be unreasonable and thus decline to afford it deference. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (“[A]n ‘[u]nexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice,’” and thus finding that the interpretation is not entitled to Chevron deference. (quoting Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)));see also Marmolejo-Campos v. Holder, 558 F.3d 903, 920 n.2 (9th Cir. 2009) (en banc).

Given the severe repercussions of being found to have committed a particularly serious crime, the risk of precluding relevant evidence that might alter that determination is unreasonable. Furthermore, this risk is readily avoided by permitting the IJ to use his or her discretion in weighing relevant, reliable evidence of mental health rather than categorically barring this evidence in all cases.

For all of these reasons the Board’s interpretation of the INA does not warrant deference under Chevron.

. . . .

We find the Board’s conclusion to be unreasonable because it is inconsistent with its own precedent recognizing the relevance of motivation and intent to the particularly serious crime determination. See Alphonsus, 705 F.3d at 1048 (“The BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasoned explanation for doing so.” (quoting Israel v. I.N.S., 785 F.2d 738, 740 (9th Cir. 1986))). In Matter of L-S-, the Board found significant that an individual convicted of alien smuggling did not intend to harm the victim. 22 I. & N. Dec. 645, 655–56 (BIA 1999). Indeed, the Government concedes that a particularly serious crime analysis permits consideration of an individual’s motivation. See Alphonsus, 705 F.3d at 1048 (finding no intent to harm either the arresting officer or members of the public).

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

The BIA got it wrong in just about every conceivable way, including ignoring and misapplying its own precedents, in trying to reach a result unfavorable to the respondent. Against this backdrop of serious substantive problems (and, frankly, anti-respondent bias) permeating the entire U.S. Immigration Court System, from top to bottom, Sessions outrageously is trying to speed up the system without regard to quality or due process.

Suppose you inherited a factory that was producing defective cars. Would you solve the problem by speeding up the assembly line, forbidding the workers to think about their job functions, and denying them necessary training and equipment. No, that would produce even more defective cars, likely putting your company out of business. So, how is Session’s “just pedal faster” approach to assembly line justice acceptable? Obviously, it isn’t!

Sometimes, it doesn’t take a Government Accountability Office study to ferret out waste, fraud, and abuse. In this case, Jeff Sessions is right out there in public view intentionally and maliciously destroying a key part of the U.S. justice system. Why is Congress standing by and letting him get away with it? Why is the taxpayers’ money being wasted on illegal, illogical, and totally counterproductive actions? Whatever happened to effective oversight?

PWS

04-06-18

HON. BRUCE J. EINHORN IN WASHPOST: SESSIONS’S BLATANT ATTEMPT TO INTIMIDATE U.S. IMMIGRATION JUDGES TO DEPORT INDIVIDUALS IN VIOLATION OF DUE PROCESS SHOWS A SYSTEM THAT HAS HIT ROCK BOTTOM! — Are There Any “Adults” Out There In Congress Or The Article III Courts With The Guts To Stand Up & Put An End To This Perversion Of American Justice? — “Due process requires judges free of political influence. Assembly-line justice is no justice at all.”

https://www.washingtonpost.com/opinions/jeff-sessions-wants-to-bribe-judges-to-do-his-bidding/2018/04/05/fd4bdc48-390a-11e8-acd5-35eac230e514_story.html?utm_term=.770822e8f813

My former colleague Judge Bruce J. Einhorn writes in the Washington Post:

Bruce J. Einhorn, an adjunct professor of immigration, asylum and refugee law at Pepperdine University, served as a U.S. immigration judge from 1990 to 2007.

It’s a principle that has been a hallmark of our legal culture: The president shouldn’t be able to tell judges what to do.

No longer. The Trump administration is intent on imposing a quota system on federal immigration judges, tying their evaluations to the number of cases they decide in a year. This is an affront to judicial independence and the due process of law.

I served as a U.S. immigration judge in Los Angeles for 17 years, presiding over cases brought against foreign-born noncitizens who Immigration and Customs Enforcement officers believed were in this country illegally and should thus be removed. My responsibility included hearing both ICE’s claims and the claims from respondents for relief from removal, which sometimes included asylum from persecution and torture.

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As a judge, I swore to follow the Fifth Amendment of the U.S. Constitution, which guarantees that “no person” (not “no citizen”) is deprived of due process of law. Accordingly, I was obliged to conduct hearings that guaranteed respondents a full and reasonable opportunity on all issues raised against them.

My decisions and the manner in which I conducted hearings were subject to review before the U.S. Board of Immigration Appeals and U.S. courts of appeals. At no time was my judicial behavior subject to evaluation based on how quickly I completed hearings and decided cases. Although my colleagues on the bench and I valued efficiency, the most critical considerations were fairness, thoroughness and adherence to the Fifth Amendment. If our nativist president and his lapdog of an attorney general, Jeff Sessions, have their way, those most critical considerations will become a relic of justice.

Under the Trump-Sessions plan, each immigration judge, regardless of the nature and scope of proceedings assigned to him or her, will be required to complete 700 cases in a year to qualify for a “satisfactory” performance rating. It follows that only judges who complete more, perhaps many more, than 700 cases per year will qualify for a higher performance rating and, with it, a possible raise in pay.

Essentially, the administration’s plan is to bribe judges to hear and complete more cases regardless of their substance and complexity, with the corollary that judges who defy the quota imposed on them will be regarded as substandard and subject to penalties. The plan should be seen for what it is: an attempt to undermine judicial independence and compel immigration judges to look over their shoulders to make sure that the administration is smiling at them.

This is a genuine threat to the independence of the immigration bench. While Article III of the Constitution guarantees the complete independence of the federal district courts and courts of appeal, immigration judges are part of the executive branch. Notwithstanding the right of immigration judges to hear and decide cases as they believe they should under immigration law, they are unprotected from financial extortion and not-so-veiled political intimidation under the U.S. Administrative Procedure Actor any regulations.

Moreover, federal laws do not guarantee respondents in removal hearings a right to counsel, and a majority of those in such hearings are compelled to represent themselves before immigration judges, regardless of the complexity of their cases. Those who lack representation in removal hearings typically cannot afford it, and the funds to help legal aid organizations fill in for private attorneys are nowhere to be found.

Hearings in which respondents proceed pro se, or unrepresented, are often the most challenging and time-consuming for immigration judges, who must take care to assure that the procedural rights of those facing possible removal are protected and to guarantee that inarticulate relief claims are fully considered.

The Trump administration’s intention is clear: to intimidate supposedly independent judges to expedite cases, even if it undermines fairness — as will certainly be the case for pro se respondents. Every immigration judge knows that in general, it takes longer to consider and rule in favor of relief for a respondent than it does to agree with ICE and order deportation. The administration wants to use quotas to make immigration judges more an arm of ICE than independent adjudicators.

In my many years on the immigration bench, I learned that repressive nations had one thing in common: a lack of an independent judiciary. Due process requires judges free of political influence. Assembly-line justice is no justice at all.

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

Thanks, Bruce for speaking out so forcefully, articulately, and truthfully!

Jeff Sessions is a grotesque affront to the U.S. Constitution, the rule of law, American values, and human decency. Every day that he remains in office is a threat to our democracy. There could be no better evidence of why we need an independent Article I U.S. Immigration Court!

Due Process Forever! Jeff Sessions Never! Join the New Due Process Army Now! The fight must go on until Sessions and his toxic “21st Century Jim Crows” are defeated, and the U.S. Immigration Courts finally are forced to deliver on the betrayed promise of “guaranteeing fairness and due process for all.” Harm to the most vulnerable among us is harm to all!

PWS

04-05-18

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