BIA SHOOTS UNREPRESENTED RESPONDENT ON “DIVISIBILITY” ANALYSIS — MATTER OF P-B-B-, 28 I&N Dec. 43 (BIA 2020) — Like Shooting Fish 🐟 In A Barrel 🛢!

MATTER OF P-B-B-, 28 I&N Dec. 43 (BIA 2020)

https://www.justice.gov/eoir/page/file/1296956/download

BIA HEADNOTE:

Section 13-3407 of the Arizona Revised Statutes, which criminalizes possession of a dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a violation of that statute.

PANEL: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges; SWANWICK, Temporary Appellate Immigration Judge.

OPINION: O’CONNOR, Appellate Immigration Judge

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

You think this isn’t “Theater of The Absurd?” Let’s check out Fns 5 & 6 from the opinion:

5 We recognize that the Ninth Circuit, in whose jurisdiction this case arises, utilized a modified categorical inquiry in Alvarado, 759 F.3d at 1130–33, to discern whether an alien’s conviction under section 13-3407 involved a federally controlled substance and was therefore a predicate for removal under section 237(a)(2)(B)(i) of the Act. However, the Ninth Circuit did not expressly analyze the divisibility of section 13-3407 in that decision, nor did the court have the benefit of the Supreme Court’s articulation of divisibility in Mathis. Moreover, the circuit recently certified a similar issue to the Arizona Supreme Court. See Romero-Millan v. Barr, 958 F.3d 844, 849 (9th Cir. 2020) (asking the court to resolve whether Arizona statutes proscribing possession of drug paraphernalia and possession of a narcotic drug under sections 13-3415 and 13-3408 of the Arizona Revised Statutes, respectively, are divisible with respect to the identity of the drug involved in each offense). For these reasons, we do not consider Alvarado to be persuasive authority regarding the divisibility of section 13-3407, which, in light of Romero-Millan, we view as an unsettled issue in the Ninth Circuit.

6 We acknowledge that State v. Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *2 (Ariz. Ct. App. Feb. 16, 2016), and State v. Castorina, No. 1 CA-CR 08-0816, 2010 WL 2450117, at *4 (Ariz. Ct. App. June 17, 2010), suggest that the identity of the “dangerous drug” involved in a violation of section 13-3407 is not an element of the statute. However, the United States District Court for the District of Arizona recently reviewed both cases, found that their reasoning was flawed, and concluded that Arizona case law fails to provide a “clear answer[] as to the divisibility” of section 13-3407. United States v. Sanchez-Murillo, No. CR-19-00795-PHX-SPL, 2019 WL 3858606, at *2–3 (D. Ariz. Aug. 16, 2019) (alteration in original) (citation omitted). Accordingly, we are not persuaded that Prescott or Castorina “definitively answer[s] whether the dangerous drug requirement of [section] 13-3407[] is divisible.” Gonzalez-Dominguez v. Sessions, 743 F. App’x 808, 811 (9th Cir. 2018).

So, how do you think that the unrepresented, almost certainly detained, respondent did on these issues, assuming that he even can read the BIA’s decision or have someone accurately read It to him?

The whole Immigration Court System has become a judicially and Congressionally-enabled “Due Process Farce” befitting a third word failed state that our country now resembles under the Trump kakistocracy.

NO, those who say our democratic institutions are “holding up” under Trump are living in a parallel universe!

PWS

07-24-20

🏴‍☠️AFFIRMATIVE MISCONDUCT — 2d Cir. Calls Out DHS Misconduct, Reacts To DOJ’s Questionable Litigating “Strategy” In Equitable Estoppel Case — Schwebel v. Crandall

Jeffrey Feinbloom
Partner
Feinbloom Bertisch LLP
NY, NY

Schwebel v. Crandall, 18-3391 (2d Cir. July 22, 2020)

https://scholar.google.com/scholar_case?case=1950544751001345123&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Attorney Jeffrey Feinbloom reports:

I am pleased to announce a big win today before the Second Circuit. The Opinion is attached.

The Court held that the government is equitably estopped from denying an application for adjustment of status where: (1) it commits “affirmative misconduct” by failing to comply with an affirmatively required procedure – in this case, the failure to issue a Receipt or Rejection Notice in response to an attempted filing; (2) the applicant reasonably relies on the agency’s misconduct/inaction; and (3) the applicant is prejudiced thereby.

The interesting twist in this case is that the Court declined to reach the underlying statutory issue – concerning the CSPA – on which the District Court ruled in our favor. My take, having litigated and argued the case in both courts, is that the panel was genuinely flabbergasted that the government was pursuing the appeal and took the opportunity to stick it to DHS and issue a ruling on estoppel. The District Court did not even address estoppel, which was my alternative argument and occupied less than 5% of my briefing. My understanding is that the District Court decision – affirmed on other grounds – can still be cited for the substantive/legal conclusions it made regarding the CSPA. (Please correct me if I am wrong).

__________________________________

Jeffrey A. Feinbloom

FEINBLOOM BERTISCH LLP

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

Thanks, Jeffrey. The term “Affirmative Misconduct” could be used to describe the overall conduct of DHS and the entire immigraton kakistocracy under the Trump regime.

Historical Footnote: I worked on Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976) (holding that government official’s “noncompliance with an affirmatively required procedure” constituted “severe” misconduct, and reversing Board of Immigration Appeal’s (“BIA”) order of deportation without remanding to agency for fact-finding or further proceedings) when I was a young attorney in the “Legacy INS” Office of General Counsel, then headed by the legendary immigration guru Sam Bernsen, in 1976.

The Corniel-Rodriguez case led directly to the eventual creation of the section 212(k) waiver for innocent misrepresentations on visa applications as part of a larger “INS Efficiency Bill” proposed by our Office and eventually enacted by Congress. Just shows that there was a time when those running the U.S. immigration system actually “did the right thing,” at least on some occasions. Perhaps not surprisingly, “doing the right thing” often also proved to be the “efficient thing” by promoting justice and avoiding unnecessary, and often losing, litigation.

Those days, of course, are long gone. The Government immigration system is now run by hacks lacking both expertise and values and who, with the assistance of the DOJ, intentionally clog the Federal Courts with litigation that likely would have been deemed frivolous, unethical, or at least not in the best interests of the public in earlier times.

It also highlights a severe deterioration in the performance of the Solicitor General’s Office in the DOJ. That office used to encourage all Federal agencies to develop administrative solutions in cases where, after review of the Article III Courts’ “adverse decisions,” the agency position below appeared to be indefensible in future litigation.

Now, the Solicitor General is actually a “cheerleader” for some racially motivated appeals against lower court decisions correctly favoring immigrants and asylum seekers. These appeals are often “supported” by very obvious pretexts for invidious actions by the regime. Given the lack of integrity, courage, and commitment to racial justice on the current Supremes’ majority, the “bad guys” sometimes improperly prevail.

But, it’s actually no more mystery to outgoing Solicitor General Noel Francisco what motivates Stephen Miller & co. than it is to the rest of us. It’s just that Francisco has consciously chosen to be “part of the problem,” something that should be remembered when the history of his disgraceful tenure in office is written.

It also shows that whenever we finally get a return to “Good Government,” a “cleanout” of EOIR and creation of an Article I Immigration Court needs to be the first thing on the list; but, a thorough re-examination of the role of every part of a corrupt DOJ that has failed to act independently and has furthered a program of overt racism, inequality, and injustice, and often argued disingenuously for “worst practices and worst interpretations,” is also an absolute necessity.

To state the obvious, the fairness and efficiency of our immigration system as well as our entire U.S. Justice system is actually in full throttle reverse under the Trump kakistocracy.

Due Process Forever!

PWS

07-23-20

🤡CLOWN COURT REPORT: “Judging Lite” — Squeezed By A Bigoted AG Who Usurped Their Role While Driving Them To Rubber Stamp More Mindless Denials, The Bigger (Not Better) BIA’s Intellectual Output Shrinks To The Size Of A Pea, According To “The Asylumist,” Jason Dzubow

https://www.asylumist.com/2020/07/15/the-unbearable-lightness-of-bia-ing-ten-year-anniversary-edition/

Way back in 2010, I did a blog post about the Board of Immigration Appeals, where I complained that the Board issues too few decisions and does not provide enough guidance to Immigration Judges. Ten years later, things are no better. In fact, based on the available data, the Board is publishing even fewer decisions these days than it did back in the late aughts. Here, we’ll take a look at the situation in 2010, and then review where things stand now.

Before we get to that, we have to answer a preliminary question: What is the Board of Immigration Appeals? According to the BIA Practice Manual—

The Board of Immigration Appeals is the highest administrative body for interpreting and applying immigration laws. The Board is responsible for applying the immigration and nationality laws uniformly throughout the United States. Accordingly, the Board has been given nationwide jurisdiction to review the orders of Immigration Judges and certain decisions made by the Department of Homeland Security (DHS), and to provide guidance to the Immigration Judges, DHS, and others, through published decisions. The Board is tasked with resolving the questions before it in a manner that is timely, impartial, and consistent with the Immigration and Nationality Act and regulations, and to provide clear and uniform guidance to Immigration Judges, DHS, and the general public on the proper interpretation and administration of the Immigration and Nationality Act and its implementing regulations.

Having completed their one published decision for the year, some BIA Board Members take a well-earned rest.

In essence, the BIA is supposed to be the Supreme Court of immigration law. But because the Board issues so few published decisions, it is not fulfilling its duties to provide guidance or ensure that laws are applied uniformly throughout the country. This is not a recent problem.

If you look back at the data from a decade ago, you will see that in 2007, the BIA decide a total of 35,394 cases and had 45 published decisions. In 2008, it decided 38,369 cases and published 33 decisions, and in 2009, it decided 33,103 cases and published 34 decisions. This means that for every 1,000 cases the Board decides, it publishes about 1 case. Looked at another way, during 2007, 2008, and 2009, the Board had about 15 Members (judges on the BIA are called Board Members). This means that in its most prolific year (2007), each Board Member would have had to publish three cases. I’m told that publishing a case is a real production, but even so, three cases per year? That seems pretty weak. The not-very-surprising result is that the Board is not providing the guidance that Immigration Judges need, and this contributes to a situation where different adjudicators are interpreting the law in widely inconsistent ways.

Fast forward 10 year and the situation is no better. In FY2016, the Board decided 33,241 cases and in FY2017, it decided 31,820 cases. In each year, the Board published just 27 decisions. In FY2018, the Board decided 29,788 cases and published 38 decisions, and in FY2019, the BIA published 22 decisions (EOIR has not released data about the number of cases adjudicated by the Board in FY2019). Indeed, in 2018 and 2019, the situation is even worse than these numbers suggest. That’s because in 2018, of the 38 published BIA decisions, 15 were actually decided by the Attorney General (meaning only 23 were decided by the BIA). In 2019, the AG published six cases, meaning that the Board itself published a paltry 16 decision, or–given the expanded number of Board Members–less than one published decision per Member.

Let’s digress for one moment to discuss the difference between an Attorney General decision and a BIA decision. The BIA derives its decision-making authority from the Attorney General. This means that the AG has power to decide immigration appeals, but he has given that authority to the specialists on the Board, who presumably know more about immigration law than their boss. However, because decision-making power ultimately comes from the AG, he can “certify” a case to himself and then issue a decision, which has precedential authority over Immigration Judges and over the Board itself. This means that if the Board issues a decision that the AG does not like, he can change it. Prior to the Trump Administration, AGs generally deferred to the Board and rarely certified cases to themselves for decisions. In the last two years of the Obama Administration, for example, the AG issued a total of three published decisions, two in 2015 and one in 2016, as compared to 21 AG decisions in 2018 and 2019 (to be fair, the Trump Administration did not issue any AG decisions in 2017). The main reason for the AG to issue decisions is to more forcefully implement the current Administration’s immigration agenda. Many who work in the field oppose this type of politicization of the immigration law, and organizations such as the National Association of Immigration Judges (the judges’ union) have been pushing for an independent court system.

Aside from politicization of the law, one result of the AG’s more active role in issuing decisions has been to sideline the BIA. I imagine this is not good for morale. Essentially, the “Supreme Court of Immigration Law” has been relegated to deciding unpublished decisions, which contribute little to improving the overall practice of law.

In any event, it has always surprised me how few decisions the BIA publishes. Chapter 1 of the BIA Practice Manual provides: “Decisions selected for publication meet one or more of several criteria, including but not limited to: the resolution of an issue of first impression; alteration, modification, or clarification of an existing rule of law; reaffirmation of an existing rule of law; resolution of a conflict of authority; and discussion of an issue of significant public interest.” Frankly, it is difficult to believe that fewer than one case in one thousand satisfies these criteria. As I wrote in 2010–

Although it might be more work over the short term, if the Board published more frequently, Immigration Judge decisions would become more consistent–creating less work for the BIA over the long term. It would also make life easier for the federal courts of appeals, saving government resources. Finally–and most important from my point of view–it would create more certainty and predictability for immigrants and their families.

All this remains true. But after three years of the Trump Administration appointing Board Members, many of whom are considered hostile to immigrants, perhaps now is not the time to complain about too few published decisions. Maybe. But I still think there exists a desperate need for guidance and consistency, and even the “unfriendly” Board Members are more inclined to follow the law than our current AG. In addition, there are many mundane, non-political issues that simply need deciding (such as this recent BIA decision). Despite the more hostile make-up of the Board, I still believe–as I believed ten years ago–that the BIA should embrace its role as “the highest administrative body for interpreting and applying immigration laws” and publish more decisions.

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

Careful what you ask for, Jason! While you might see some difference between Billy the Bigot and the current BIA, I haven’t been able to find one. When, indeed, was the last time that a respondent “won” a case in a BIA precedent that wasn’t then certified to the AG for reversal?

On the other hand, I do run across some correctly decided “winners” among the eclectic mix of unpublished BIA decisions that comes across my “Courtside e-desk.” Therefore, I go with Mies van der Rohe on this one: the less frequently we hear from the BIA on precedents the more justice there will be for respondents.

That’s particularly true because the famous “BIA Single-Judge Panel” will sometimes issue inconsistent decisions, one of which actually gets it right and favors the respondent. Inevitably, these days, when such “conflicts” go into the precedent making machine, the respondent always loses. Faced with the choice of consistently sentencing respondents to death or saving a few lives now and then, I’d definitely go with the latter.

Actually, I’d argue that the only legitimate purpose of the Immigration Courts, including the BIA, is to save some lives that need saving. If, as Barr seems to think, it’s just a device to insure everyone gets removed and the decisions are “teed up” for OIL to best defend them on review, who needs it? Spend the money on something more useful — like cemetery plots for all the refugees and asylum seekers we wrongfully turn away.

It’s hardly surprising to me that a “maliciously incompetent” (originally your term, I believe) regime that has more than doubled the number of Immigration Judges while tripling the backlog would produce fewer precedents with more BIA judges. With the Trump/Sessions/Barr DOJ/EOIR kakistocracy, more judges clearly produce more backlog and fewer precedents.

There was a time, my friend, in the “ancient past,” more than two decades ago, when a supposedly “too big to function” BIA issued more than fifty (50) precedents in a year. Not only that, but many were hotly contested, “cutting edge” issues that the BIA took on without being “ordered” by the Courts of Appeals or the DOJ to do so.

The vast majority of those decisions were issued by the full en banc BIA with each judge actually recording a vote so they public knew exactly who stood where on each issue. There also were plenty of separate dissenting and concurring opinions.

Lo and behold, some of those dissents in favor of a fairer assessment of credibility, a more faithfully generous interpretation of asylum law, per Cardoza-Fonseca and Mogharrabi, and a better framework for “categorical analysis” of criminal provisions, eventually found favor with the reviewing Courts of Appeals.

When I taught Refugee Law & Policy at Georgetown Law, I used Aleinikoff & Martin, et al, Forced Migration as a text. A remarkable number of the BIA precedents from that particular era found their way into the book. I, of course, had to “get over” the fact that my buddies, Alex and David, had edited out some of my best dissents from the textbook versions. No matter, I insisted that my students read the “full text” so they could see what a “better answer” to the issue might have been! Many of those former students, in turn, have formed the nucleus of the “New Due Process Army!”

Due Process Forever! “BIA Lite,” Never!

PWS

07-22-20

🏴‍☠️☠️⚰️👎🤮KAKISTOCRACY KORNER: Chase, Schmidt Rip Billy The Bigot’s Appointment Of Hate Grouper To Arlington “Bench” – Failed System Drops All Pretenses Of Fairness & Due Process As Feckless Congress & Complicit Article IIIs Flunk Constitutional Duties! –

https://www.law360.com/immigration/articles/1293543/ex-fair-research-director-among-46-new-immigration-judges

Hannah Albarazi
Federal Courts
Reporter
Law360

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

Ex-FAIR Research Director Among 46 New Immigration Judges

By Hannah Albarazi

. . . .

“It would be impossible for one to receive a fair hearing before Matthew O’Brien,” Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360. Chase said O’Brien has expressed a view of asylum law that is at odds with the controlling circuit case law that he would be tasked with applying from the bench.

Chase said O’Brien has “basically spouted propaganda for an organization openly hostile to immigration.”

His appointment, Chase said, shows that the Trump administration doesn’t want a fair and independent immigration court and is proof that the Executive Office for Immigration Review needs to be taken out of the control of the Department of Justice, an enforcement agency.

The administration “has repeatedly emphasized to classes of new immigration judges that they are above all employees of the attorney general, who does not believe most asylum seekers are deserving of protection,” Chase said.

These appointments could negatively impact the immigration courts for decades, Chase said.

Paul Wickham Schmidt, a retired U.S. immigration judge who chaired the Board of Immigration Appeals in the Clinton administration, also slammed the recent wave of appointments.

“The idea that these are the 46 best qualified individuals in America to discharge these awesome responsibilities in a fair, impartial and expert manner, in furtherance of due process of law and with recognition of the human rights and human dignity of the individuals whose lives are at stake, is beyond preposterous. It’s a fraud on American justice,” Schmidt told Law360.

Schmidt didn’t mince his words about O’Brien’s appointment either.

“As someone who has helped FAIR spread its racially biased, anti-immigrant, and anti-asylum propaganda and false narratives, O’Brien is not qualified to be a fair and impartial quasi-judicial decision maker as required by the due process clause of our Constitution,” Schmidt said.

. . . .

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

Those with Law360 access can read Hannah’s complete article at the link.

The U.S. Justice system, once the envy of free nations throughout the world, is disintegrating before our eyes. If there is no justice for those whose lives are at stake, there will be no justice for any of us in the Trump/Barr Third World kakistocracy.

Due Process Forever! Corrupt & Feckless Institutions Parodying Justice, Never!

PWS

07-21-20

🏴‍☠️☠️⚰️🤮👎AS TRUMP LITERALLY KILLS AMERICA, “WHERE’S THE OUTRAGE,” ASKS CHARLES M. BLOW @ NY TIMES? — Good Question!

https://www.nytimes.com/2020/07/19/opinion/trump-coronavirus-us.html?action=click&module=Opinion&pgtype=Homepage

So again I must ask, where is your outrage? How is this happening? How is it being allowed to happen? Real people, Americans, are being allowed to get sick and die while Trump plays a political game. How long can this continue?

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

Read the complete op-ed at the link.

No wonder the rest of the world is aghast at the massive failure of American democracy and our public institutions that were supposed to protect us from an evil, “maliciously incompetent,” totally unqualified “leader!”

PWS

07-20-20

🏴‍☠️☠️⚰️🤮 NOT ROCKET SCIENCE: When A Country Allows Itself To Be Governed By An Evil Moron & His Sycophantic Followers, Bad Things Happen!

https://www.washingtonpost.com/nation/2020/07/19/coronavirus-update-us/

By Derek Hawkins and Felicia Sonmez @ WashPost:

With coronavirus cases rising across the country and the U.S. death toll topping 137,000, President Trump on Sunday dismissed concerns about the spike in infections, telling Fox News that “many of those cases shouldn’t even be cases.”

“Many of those cases are young people that would heal in a day,” the president told Fox News host Chris Wallace in an interview. “They have the sniffles and we put it down as a test.”

While young people make up an increasing share of new cases, the virus has affected people in all age groups. A surge of infections is driving deaths back up again after months of decline, and hospitals in hard-hit states such as Florida, Texas and Arizona are facing an influx of patients that health officials say could soon overwhelm medical systems. Nationwide, hospitalizations were on track to exceed their previous peak of roughly 60,000, reached in the pandemic’s early months.

Here are some other significant developments.

• The Trump administration is trying to block billions of dollars for states to conduct testing and contact tracing in an upcoming coronavirus relief bill, people involved in the talks said Saturday. The administration is also trying to block billions that GOP senators want to allocate for the Centers for Disease Control and Prevention, the people said.
• A growing number of Americans disapprove of Trump’s handling of the pandemic. Currently, 38 percent approve of his handling, and 60 percent disapprove, according to a new Post-ABC News poll.
• A study from South Korea could bolster those who argue that reopening classrooms in much of the United States is too risky, suggesting that while children under 10 are less likely to spread the coronavirus, those between ages 10 and 19 will spread it similarly to adults.
• Georgia’s presentation of its coronavirus data is again under scrutiny, with a viral tweet pointing out how the color-coding of a government map has evolved. At the beginning of the month, for instance, a county needed at least 5,959 coronavirus cases to be colored red in the state’s map of the outbreak. Now, a county needs at least 9,597 — with the result that no other county has newly joined the four that have been colored red since July 1, even as the state’s cases have jumped by more than 37 percent in that period.
• Health authorities are seeking to conduct testing faster while conserving resources. The Food and Drug Administration on Saturday reissued an emergency use authorization to Quest Diagnostics for a coronavirus test to be used in pool testing, which involves combining samples from several people and testing them all at once.

Trump’s remarks came after another week of grim data highlighting the uncontrolled spread of the virus. Infections rose in states from every region of the country, with more than a dozen states on Saturday reaching record highs in their seven-day averages for new daily cases.

Georgia, Missouri, Wisconsin, North Carolina and Kentucky reported new single-day case records on Saturday, while states from Vermont to North Dakota to Oregon showed significant increases in their weekly averages, according to tracking by The Washington Post.

More than 20 states are reporting seven-day averages in coronavirus-related deaths that are higher than at the end of June, underscoring the turnaround since May and June, when deaths declined nationally — which Trump had touted as a sign of progress.

Rep. Donna Shalala (D-Fla.), whose district encompasses parts of Miami with widespread infections, pushed back on the notion that the new cases were limited to young, healthy people and weren’t a cause for concern.

“It’s the working poor, it’s seniors, it’s now young people, and it’s totally out of control,” Shalala, a former health and human services secretary, said on ABC News’s “This Week.” “We need to close down again … That’s our worst nightmare, and we’re going to have to do that.”

. . . .

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

You can read the rest of this article about the Trump kakistocracy in action at the link.

It’s a dark and disturbing tale of unrelenting stupidity, evil, corruption, and cowardice on the part of those who refuse to stand up to a would be emperor who has never had any clothes.

PWS

07-19-20

🏴‍☠️☠️⚰️👎🏻KAKISTOCRACY GONE WILD: Billy The Bigot Adds 46 More To America’s Star Chambers — Long on Government Backgrounds, Particularly Prosecutorial — Short on Immigration Expertise or Reputations For Fairness & Scholarship — CONSPICUOUSLY ABSENT: Asylum, Human Rights Expertise & Experience Representing Humans Seeking Justice!

Here’s the list with bios:

https://www.justice.gov/eoir/page/file/1295301/download

This list includes what appears to be a municipal traffic court judge and someone who spent the last four years working for a white nationalist hate group (per the SPLC).

https://www.youtube.com/watch?v=mesbqxTSzEM

Due Process Forever! America’s Star Chambers, Never!☠️⚰️🤮

PWS

07-19-20

🇺🇸👍🏼🗽😇THE FUTURE WILL BELONG TO NATIONS THAT WELCOME IMMIGRANTS: Getting Rid of Trump, Miller, Cotton, & The Other GOP Racist Restrictionists Is A Key First Step To A Better America For All!

https://apple.news/ApxPyJV3cSBOtEU7c4Xlk4A

Frida Ghitis @ CNN:

The only way the United States can remain the world’s most prosperous, powerful country is by embracing immigration. That’s the inescapable conclusion from a new study published on Tuesday in the Lancet that predicts the world’s population will peak far sooner than anticipated, and start shrinking before the end of this century.

There is, however, no guarantee that the US will embrace immigration, even to save itself. Domestic politics, currently inflamed by divisive nativist leaders, have turned immigration into a contested topic. A country that rose to historic heights of influence and prosperity by welcoming immigrants, is now led by a President who has weaponized the issue with unfathomable cruelty.

One example: At this moment, hundreds of migrant families held in detention facilities face the wrenching choice of whether to let their children be released to third parties, or stay together in detention. This awful decision comes as the result of court order last month that called for the children’s release in light of the coronavirus pandemic — and it is essentially a new version of the family separation policy that tore apart thousands of children from their parents earlier in the Trump administration.

Such heartless political measures flout America’s founding principles — but are also out of step with public opinion on immigration: an overwhelming majority of Americans — 77%, according to a recent 2020 Gallup poll- say it is good for the country. The prospect of falling birth rates predicted by study — from the Institute for Health Metrics and Evaluation at the University of Washington’s School of Medicine — may be a thumb on the scale in favor of more immigration. After all, businesses will need workers. Even the military will likely feel the pressure of contracting numbers of people of military age.

The new study shows how far off the mark earlier assumptions about exploding population growth fell. Some among you, my dear readers, may remember when intellectuals were gripped by the fear of a “Malthusian catastrophe,” fear that population growth would outpace our ability to feed ourselves. But it turns out that Thomas Robert Malthus, the 18th century economist and demographer, got it all wrong.

Not only did agricultural advances undercut his thesis, it turns out the world’s population will start contracting before long, with powerful economic, geopolitical and environmental implications.

. . . .

The result will be increased friction over immigration, with the arguments of immigration advocates bolstered by demographers, economists and a business community anxious to see consumption increase and workers available.

The present may be blazing with the demagogues’ sturm und drang about keeping immigrants out. But the future belongs to the country that welcomes them.

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

Read the complete article at the link.

Immigration is both an unstoppable human force and good for America. The sooner we end the current regime’s cruel and stupid White Nationalist policies and develop a robust, thoughtful, inclusive, realistic approach to legal immigration (including refugees), the better off we will be as a nation.

An immediate benefit would be a sharp reduction in the amount of resources and goodwill wasted on counterproductive and often both illegal and immoral restrictionist enforcement gimmicks. That would actually align immigration enforcement with the national interest, rather than undermining it as is now the case with many of the misguided enforcement efforts, particularly “civil” imprisonment and deportations of refugees and long time residents.

This November, vote like your life depends on it! Because it does!

PWS

07-17-20

🤮👎ERROR SUPPLY: Billy The Bigot’s BIA Blows Basics Big-Time: 1) 1-Year Bar (2d Cir.); 2) Gang-Based PSG (2d Cir.); 3) Fourth Amendment (2d Cir.); 4) Retroactivity (11th Cir.); 5) CIMT (4th Cir.); 6) Categorical Approach (2d Cir.)!

Dan Kowalski @ LexisNexis Immigration Community reports on the on the latest “Medley of Deadly Mistakes” —

CA2 on One Year Filing Deadline, PSG: Ordonez Azmen v. Barr

Ordonez Azmen v. Barr

“Mario Ordonez Azmen petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to remand and dismissing his appeal of the denial of his asylum and statutory withholding claims under the Immigration and Nationality Act. The BIA did not adequately explain its conclusion that Ordonez Azmen’s proposed social group of former gang members in Guatemala was not particular. Nor did the BIA adequately explain its reasons for denying Ordonez Azmen’s motion to remand based on evidence of new country conditions. Finally, we hold that under 8 U.S.C. § 1158(a)(2)(D), changed circumstances presenting an exception to the one-year deadline for filing an asylum application need not arise prior to the filing of the application, and the BIA erred when it refused to consider Ordonez Azmen’s alleged changed circumstances on the ground that the change occurred while his application was pending. We GRANT the petition, VACATE the BIA’s decision, and REMAND for reconsideration of Ordonez Azmen’s application for asylum and statutory withholding of removal and his motion to remand, consistent with this opinion.”

[Hats off to Zachary A. Albun, Albert M. Sacks Clinical Teaching & Advocacy Fellow, Harvard Immigration & Refugee Clinical Program, Harvard Law School, who writes: “The Court found the INA unambiguously provides that “material changed circumstances” excepting the one year filing deadline need not precede filing of the asylum application (i.e., you can rely on a changes that occur during proceedings). The court further held that W-G-R- & M-E-V-G- do not create a per se rule that “former gang member” PSGs lack cognizability. Another important point is that the Court relied on two unpublished BIA decisions that we’d submitted in determining it need not defer to the agency, but instead decide the case based on its own reading of the governing statute and regulations. Major credit and a huge thanks goes to my co-counsel at the University of Minnesota Federal Immigration & Litigation Clinic and the National Immigrant Justice Center, and to my colleagues and students at HIRC.”]

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CA2 on Suppression: Millan-Hernandez v. Barr

Millan-Hernandez v. Barr

“Maria Cared Millan-Hernandez petitions for review of a 2018 Board of Immigration Appeals decision dismissing her appeal of an Immigration Judge’s denial, without an evidentiary hearing, of her motion to suppress evidence. On appeal, we consider whether Millan-Hernandez provided sufficient evidence of an egregious Fourth Amendment violation to warrant an evidentiary hearing. We conclude that she did and that the agency applied an incorrect standard in determining otherwise. Accordingly, the petition for review is GRANTED and the cause REMANDED for further proceedings consistent with this Opinion.”

[Hats off to AADHITHI PADMANABHAN, The Legal Aid Society, New York, NY (Nicholas J. Phillips, Joseph Moravec, Prisoners’ Legal Services of New York, Buffalo, NY, on the brief), for Petitioner!]

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CA11 on Retroactivity: Rendon v. Atty. Gen.

Rendon v. Atty. Gen.

“Carlos Rendon began living in the United States as a lawful permanent resident in 1991. Then in 1995, he pled guilty to resisting a police officer with violence. Under immigration law this offense qualifies as a crime involving moral turpitude (“CIMT”). At the time, Mr. Rendon’s sentence of 364 days in state custody did not affect his status as a lawful permanent resident. But Congress later changed the law. In 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) made him deportable based on his CIMT conviction. And in 1997, the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) created the “stop-time rule,” which meant people convicted of certain crimes were no longer eligible for a discretionary form of relief known as cancellation of removal. Approximately 25 years after his guilty plea, an immigration judge found Mr. Rendon removable and ruled he was no longer eligible for cancellation of removal on account of the stop-time rule. On appeal, Mr. Rendon now argues that it was error to retroactively apply the stop-time rule to his pre-IIRIRA conviction. After careful review, we conclude that Mr. Rendon is right. We reverse the decision of the Board of Immigration Appeals and remand for further proceedings.”

[Hats off to Anthony Richard Dominquez at Prada Urizar, PLLC!]

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CA4 on CIMT: Nunez-Vasquez v. Barr

Nunez-Vasquez v. Barr

“David Nunez-Vasquez seeks review of the Board of Immigration Appeals (“BIA”) finding that he was removable because he had been convicted of two crimes involving moral turpitude (“CIMT”)—a conviction for leaving an accident in violation of Va. Code Ann. § 46.2–894 and a conviction for use of false identification in violation of Va. Code Ann. § 18.2–186.3(B1). We hold that neither conviction is categorically a crime involving moral turpitude. We therefore grant Nunez-Vasquez’s petition for review, vacate the BIA’s order of removal, order the Government to return Nunez-Vasquez to the United States, and remand to the BIA for further proceedings.”

[Hats off to Ben Winograd, Trina Realmuto, Kristin Macleod-Ball, Nancy Morawetz and Samantha Hsieh!]

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CA2 on Antique Firearms: Jack v. Barr

Jack v. Barr

“In these tandem cases, Jervis Glenroy Jack and Ousmane Ag each petition for review of decisions of the Board of Immigration Appeals (BIA) ordering them removed based on their New York firearms convictions. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(C). We principally conclude that the statutes of conviction, sections 265.03 and 265.11 of the New York Penal Law, criminalize conduct involving “antique firearms” that the relevant firearms offense definitions in the Immigration and Nationality Act do not. This categorical mismatch precludes the petitioners’ removal on the basis of their state convictions. We therefore GRANT the petitions, VACATE the decisions of the BIA, and REMAND both causes to the agency with instructions to terminate removal proceedings.”

[Hats off to Nicholas J. Phillips, Joseph Moravec, Prisoners’ Legal Services of New York, Buffalo, NY; Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Jervis Glenroy Jack, Petitioner in No. 18-842-ag., Stephanie Lopez, Neighborhood Defender Service of Harlem, New York, NY; Alan E. Schoenfeld, Andrew Sokol, Beezly J. Kiernan, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Ousmane Ag, Petitioner in No. 18-1479-ag.!]

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Remember, unlike most so-called “civil litigation,” lives and futures are at stake in every one of these cases. It’s like sending in brain surgeons trained by the “American Academy of Morticians.” Over and over, the Trump DOJ has shown itself more interested in “upping the body count” than on fairness, due process, and just results at EOIR. Is there a “breaking point” at which the Article IIIs will finally get tired of correcting the BIA’s mistakes and doing their work for them?

Good thing the BIA isn’t sitting for the final exam in my “Immigration Law & Policy” course at Georgetown Law. Even “the curve” might not be enough to save them.

Due Process Forever!

PWS

07-15-20

☠️👎🏻🤮GOODBYE GONZO! — Notorious Racist, Bigot, Homophobe, Misogynist Loses GOP Primary — Blinded By The Fog of Hate, Gonzo Never Understood Trump’s Sole Overriding Concern — Eventually, His Failure To Put Shielding Trump’s Corruption First Made Him “the only monument to the Confederacy that Trump was eager to remove.” (Pema Levy @ Mother Jones)

By Paul Wickham Schmidt

Exclusive for Courtside

July 14, 2020

Back before the 2016 election, GOP backbench Jim Crow hate monger Senator Jeff “Gonzo Apocalypto” Sessions saw a kindred spirit who would help him realize his whitewashed, faux Christian view of America: Donald Trump. Becoming the first Senator to endorse Trump got Gonzo a ticket to the U.S. Attorney General’s Office, where he quickly established himself as probably the worst inhabitant after the Civil War and before Billy Barr ( a period that notably includes “John the Con” Mitchell).

During his tenure, Gonzo separated families, caged kids, targeted vulnerable Latino refugee women for abuse, illegally punished “sanctuary cities,” expanded the “New American Gulag,” diverted prosecutorial resources from real crimes to minor immigration violations, expanded the “New American Gulag,” advocated discrimination against the LGBTQ community under the guise of religious bigotry, encouraged police brutality against Black Americans, aided efforts to disenfranchise Black and Latino voters, spread false narratives about immigrant crime and asylum fraud, dissed private lawyers, stripped Immigration Judges of their authority to control their own dockets, multiplied the Immigration Court backlogs, illegally tried to terminate DACA while smearing Dreamers, spoke to hate groups, issued unethical “precedent decisions” while falsely claiming to be acting in a quasi-judicial capacity, interfered with asylum grants and judicial independence, put anti-due-process production quotas on Immigration Judges, attempted to dismantle congressionally mandated “know your rights” programs, to name just a few of his gross abuses of public office. Indeed, other than Stephen Miller and Trump himself, how many notorious child abusers get to walk free in America while their victims suffer lifetime trauma?

Despite never being the brightest bulb in the pack, his feeble attempt at “legal opinions” sometimes drawing ridicule from lower court judges, Gonzo is generally credited with doing more than any other Cabinet member to advance Trump’s agenda of hate and White Nationalist bigotry. He actually was dumb enough to believe that his unswerving dedication to a program of promoting the white race over people of color and Christians over all other religions would ingratiate him with Trump.

That would assume, however, that Trump had some guiding principle, however vile and disgusting, beyond himself. Sessions might be the only person in Washington who thought racism would trump self-protection. I’m not saying that Trump isn’t a committed racist — clearly he is. Just that his commitment to racism is subservient to his only real defining characteristic — narcissism. Just ask his niece, Mary.

Gonzo failed in the only thing that ever counted: Protecting Trump, his family, and his corrupt cronies from the Mueller investigation. It wasn’t, as some have inaccurately claimed, a show of ethics or dedication to the law.

Even Gonzo realized that participating in an investigation involving a campaign organization of which he was a member and therefore both a potential witness and target, would be an egregious ethical violation that could cost him his law license as well as a potential criminal act of perjury, given that he had testified under oath during his Senate confirmation that he intended to recuse himself. Apparently, that was on a day when Trump was too busy tweeting or playing golf to focus on the implications of that particular statement under oath by his nominee.

After Trump fired him, Gonzo’s political fortunes took a sharp downturn. A guy who polled 97% of the vote in running unopposed for the Senate in 2014, polled only 38% of the vote in overwhelmingly losing the GOP primary to former Auburn Football Coach Tommy Tuberville. Tommy, a “Trump loyalist” with extreme far-right views and no known qualifications for the job, is not much of an improvement over Sessions.

Perhaps the only good news is that Alabama currently has a very decent and competent U.S. Senator, Doug Jones (D), who represents all of the people of the state. Everybody should support Doug’s campaign to maintain decency and commitment to equal justice in Government.

For those who want a further retrospective on Sessions’s grotesque career of promoting a return to Jim Crow while on the public dole, I recommend the following articles from Mother Jones and the Advocate:

https://www.motherjones.com/politics/2020/07/jeff-sessions-ends-his-political-career-in-a-blaze-of-racism/

https://www.advocate.com/politics/2020/7/14/career-racist-homophobe-jeff-sessions-over

Goodbye and good riddance to one of America’s worst and most disgusting politicos not named Trump or Steve King.

Due Process Forever!

PWS

07-15-20

🏴‍☠️ABUSE OF PROCESS: Trump Regime’s Irrational Threat To Terrorize Foreign Students Withdrawn In Face Of Widespread Bipartisan Outrage, Multiple Lawsuits, & Impending Defeat In Courts!

https://www.huffpost.com/entry/trump-foreign-students-online-classes_n_5f0e0546c5b63b8fc10f86f4

Here’s the deal. America is reeling from Trump’s mishandling of the pandemic, his divisive racist rhetoric, and his lack of a coherent plan for reopening schools. But, in the midst of these unresolved crises, Trump’s White Nationalist, xenophobic regime found time to issue, without consultation, absurdist rules threatening foreign students whose schools offered only online leaning because of legitimate health and safety concerns for the students, faculty, and staff.

This idiotic, illegal missive threatened to upend the U.S. higher education system and put a $40 billion hit on our economy during a period of unprecedented unemployment and economic disruption. Consequently, numerous educational institutions across America banded together, developed emergency legal strategies, and filed suits against the Trump kakistocracy in numerous Federal Courts.

This, in turn, tied up legal resources that could have been used more productively, as well as further clogging Federal Court dockets already overwhelmed with various unnecessary suits caused by Trump’s maliciously incompetent attack on immigration. It also tied up Government resources that might better have been used solving real problems.

Faced with certain defeat and the exposition of the total stupidity, not to mention illegality, of these rules, the Trump regime backed down before the first suit even got to hearing. But, this predictable “back off” does not repair the overall damage to our nation caused by Trump’s xenophobic war on legal immigration. Catherine Rampell cogently describes it in an op-ed in the Washington Post. https://www.washingtonpost.com/opinions/2020/07/14/even-with-administrations-about-face-international-student-visas-enrollment-is-still-set-plummet/

In the meantime, the problem of abuse of our legal system and the organs of Government by a maliciously incompetent Administration advancing a toxic and unconstitutional White Nationalist agenda remains unresolved. Indeed, the often tone-deaf approach of the Supremes to these gross abuses, particularly in the areas of immigration and human rights, has actually been a large part of the problem.

What could we accomplish if the time and resources now used to prevent a “rogue Government” from destroying democracy were instead devoted to developing constructive, cooperative solutions to our festering national problems? What if we harnessed the power of migration for human progress, rather than futilely and wastefully working at cross purposes with perhaps the oldest and most powerful human phenomenon?🗽⚖️

This November, say “No” to the White Nationalist Kakistocracy!

PWS

07-14-20

🤡SPOTLIGHTING CLOWN COURTS: HOUSE HOMES IN ON EOIR’S MALICIOUS INCOMPETENCE IN APPROPRIATIONS BILL REPORT! — “[T]ying an immigration judge’s performance to case completion threatens due process and affects judicial independence. Section 217 of the bill prohibits EOIR’s use of case completion quotas for immigration judge performance reviews.”

https://appropriations.house.gov/sites/democrats.appropriations.house.gov/files/July%209th%20report%20for%20circulation_0.pdf

The “EOIR Section” of the House Report follows:

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (INCLUDING TRANSFER OF FUNDS)

The Committee recommends $734,000,000 for the Executive Of- fice for Immigration Review (EOIR), of which $4,000,000 is from immigration examination fees. The recommendation is $61,034,000 above fiscal year 2020 and $148,872,000 below the request.

The recommendation includes $2,000,000 for EOIR’s portion of the development of the Unified Immigration Portal with the De- partment of Homeland Security (DHS) as well as increased funding for EOIR’s Information Technology (IT) modernization efforts, as requested. The recommendation also supports a level of funding that will allow for the continued hiring of immigration judges and teams. While the Committee recognizes EOIR has not requested any additional increase from its authorized position level from fis- cal year 2020, EOIR is currently well below this level and the Com-

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mittee is concerned that proposed funding increases are for posi- tions who will not be on board in fiscal year 2021.

Legal Orientation Program (LOP).—For the LOP and related ac- tivities the recommendation includes $25,000,000, of which $4,000,000 is for the Immigration Court Helpdesk (ICH) program. The LOP improves the efficiency of court proceedings, reduces court costs, and helps ensure fairness and due process. The Committee directs the Department to continue LOP without interruption, in- cluding all component parts, including the Legal Orientation Pro- gram for Custodians of Unaccompanied Children (LOPC) and the ICH. The Committee directs the Department to brief the Com- mittee no later than 15 days after enactment of this Act on how EOIR is effectively implementing these programs, including the execution of funds and any changes to the management of the pro- gram. The recommended funding will allow for the expansion of LOP and ICH to provide services to additional individuals in immi- gration court proceedings. The Committee supports access to LOP and ICHs and looks forward to receiving EOIR’s evaluation of ex- panding this program to all detention facilities and immigration courts, as directed in House Report 116–101. The Committee is deeply concerned that EOIR plans to use fiscal year 2020 funds for the procurement of a web-based application that is still under de- velopment, but did not actively discuss these changes with the Committee. While the Committee understands the coronavirus pan- demic has impacted court operations and novel approaches may be necessary for continuity, it appears a portion of these specific funds may not be fully executed in fiscal year 2020 in support of the pro- gram to pursue a new operating procedure without additional de- tails on how this will impact the LOP program in future years. The Committee is concerned that plans for a web-based application will not adhere to congressional intent to expand this program to new locations and individuals. The Committee reminds EOIR that fund- ing for this program, in its ongoing, in-person format, is mandated by law, and any diversion of these funds from their intended pur- pose must be formally communicated and convincingly justified to the Committee, consistent with section 505 of this Act.

LOP Pilot.—The Committee further directs EOIR, in coordina- tion with U.S. Customs and Border Protection (CBP), to pilot the expansion of LOP to at least one CBP processing facility with an added focus on expanding this program to family units. The Com- mittee further directs EOIR, in coordination with DHS, to assess the feasibility of expanding this pilot program nationally, and to re- port findings to the Committee no later than 180 days after the conclusion of the pilot.

Board of Immigration Appeals (BIA) Pro Bono Project.—The Committee recognizes the critical work of the BIA Pro Bono Project in facilitating pro bono legal representation for indigent, vulnerable respondents whose cases are before the Board. The Committee urges the continuation of participation of pro bono firms and non- government organizations (NGOs) in the BIA Pro Bono Project to directly facilitate case screening and legal representation. EOIR shall report annually to the Committee on the number of cases re- ferred to NGOs and pro bono legal representatives, the number of EOIR Form E 26 appeals filed against pro se respondents and filed by pro se respondents and make the information publicly available.

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Immigration case quotas.—The Committee remains concerned with the performance review standards that went into effect Octo- ber 1, 2018, which require immigration judges to complete a quota of 700 case completions per year to receive a satisfactory review. Although the Committee appreciates efforts to reduce the current backlog, tying an immigration judge’s performance to case comple- tion threatens due process and affects judicial independence. Sec- tion 217 of the bill prohibits EOIR’s use of case completion quotas for immigration judge performance reviews.

Judicial Independence and Case Management.—All courts re- quire judges to utilize case management tools in order to ensure ef- ficient use of the court’s time and resources. The Committee is con- cerned by recent Attorney General decisions that curtail the ability of immigration judges to utilize critical docket management tools, such as continuances and terminations, that enable efficient man- agement of the court’s dockets. The Committee supports the utiliza- tion of such tools to the fullest extent practicable and reaffirms its support for the authority of immigration judges to exercise inde- pendent judgment and discretion in their case decisions. Further, the Committee supports full and fair hearings for all who come be- fore the courts but remains concerned about decisions that ulti- mately keep asylum seekers, including those seeking relief from do- mestic violence, in detention for longer periods of time.

Video teleconferencing.—The Committee is frustrated by EOIR’s response to information requested in the Explanatory Statement accompanying the fiscal year 2020 Consolidated Appropriations Act regarding the publication of its policies for determining the use and dissemination of video teleconferencing (VTC) for individual merits hearings and tent court facilities. EOIR cites multiple policies on its website, but ultimately no central guidance on VTC appears to exist, outside of an interim policy document from 2004. The growth and dependence on VTC has developed since that time and it is concerning that EOIR does not have consistent rules governing the use of video teleconferencing, nor does it appear to have standards to ensure that the procedural and substantive due process of re- spondents in immigration court are protected. The Committee di- rects EOIR, within 90 days of enactment of this Act, to develop clear and consistent rules on the use of VTC hearings, including when the use of video teleconferencing is appropriate, and to de- velop rules for utilizing VTC hearings for particularly vulnerable groups such as unaccompanied minors, individuals with medical or mental health problems, and those subject to the Migrant Protec- tion Protocols (MPP) program. The Committee also directs EOIR to provide these newly developed policies to the Committee, and to make these policies publicly available.

Rocket Dockets.—The Committee is troubled by recent reports of changes in EOIR practices that expedite case processing and place unaccompanied children in so called ‘‘rocket dockets’’’ commencing their cases through VTC within days of their arrival in the United States. This practice is a shift from former precedent, and it lacks recognition that cases involving unaccompanied children are dif- ferent than detained adults. Immigration court proceedings must be tailored to the circumstances of individual cases in order to pre- serve due process and fundamental fairness, in particular for mi- nors. The Committee is equally troubled by reports that EOIR in-

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tends to expand this expedited case processing for cases involving unaccompanied children, with little knowledge about how this proc- ess impacts children, their opportunity to find counsel, or the chal- lenges with communicating with children of varying ages.

EOIR is directed to report to the Committee no later than 30 days after enactment of this Act on the number of cases involving unaccompanied children that had a Master Calendar hearing scheduled within 30 days of their Notice to Appear (NTA), the loca- tion of these cases, including whether VTC was utilized for the hearing, whether the child had counsel, and the outcome of the pro- ceedings. Further, the Committee notes that EOIR has not commu- nicated with the Committee on this change in practice and is con- cerned that EOIR is piloting and expanding a new program that has not been explicitly authorized by Congress.

Tent Court Proceedings.—The Committee is concerned that the creation of new immigration hearing facilities, often referred to as ‘‘tent courts’’’, along the border, where judges appear via video tele- conferencing (VTC). The Committee is concerned that these new fa- cilities threaten the public nature of immigration court pro- ceedings. The Committee directs EOIR to provide a report within 60 days of the enactment of this Act that provides details on EOIR’s involvement in the creation and operation of such immigra- tion hearing facilities, as well as information detailing how EOIR schedules judges for hearings and a list of judges hearing cases in these facilities. EOIR shall also post to its website information on attorney access at those facilities, as well as policies regarding pub- lic and media access.

Migrant Protection Protocol (MPP) Statistics Publication.—With- in 60 days of enactment of this Act, and quarterly thereafter, EOIR is directed to publish on its public website: (1) the number of MPP Notices to Appear (NTA) received and completed, (2) the number of continuances or adjournments in non-MPP cases due to an immi- gration judge being reassigned to hear MPP cases, (3) the number of MPP hearings that occurred via VTC, and (4) the number of im- migration judges assigned to hear MPP cases. EOIR is also di- rected to publish the number of MPP hearings delayed as a result of the coronavirus pandemic, as well as the average length of delay. EOIR is further directed to publish all workload-related data cur- rently included on its Workload and Adjudication Statistics website page in separate MPP and non-MPP formats.

EOIR is also directed to develop a plan to begin tracking the ap- pearance rate of individuals placed into removal proceedings, bro- ken out into MPP and non-MPP cases, calculated by determining the percent of individuals who have attended all scheduled hear- ings in any given quarter, regardless of whether the hearing re- sulted in a completion. The Committee directs EOIR to report on its plans no later than 180 days after enactment of this Act.

Interpreters.—The recommendation includes the requested fund- ing increase for interpretation services. While the Committee recog- nizes that increasing numbers of respondents in immigration courts require the use of interpretation and the ballooning costs as- sociated with these interpretation services, the Committee directs EOIR to pursue cost efficient measures to ensure appropriate lan- guage access for all respondents, including indigenous language speakers, and further directs EOIR to submit a report to the Com-

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mittee, no later than 90 days after enactment of this Act, outlining steps taken to reduce costs. The Committee eagerly awaits EOIR’s quarterly reports highlighting any continuances or adjournments for reasons related to interpretation as well as EOIR’s joint report with DHS on shared interpretation resources as directed in House Report 116–101.

Legal Representation.—The Committee is concerned with the low rate of representation in immigration court, and the recommenda- tion provides $15,000,000 in State and Local Law Enforcement As- sistance for competitive grants to qualified non-profit organizations for a pilot program to increase representation.

Immigration judges.—The Committee directs EOIR to continue to hire the most qualified immigration judges and BIA members from a diverse pool of candidates to ensure the adjudication process is impartial and consistent with due process. The Committee is dis- turbed by recent reports of politicized hiring processes for immigra- tion judges. The Committee directs EOIR to continue to submit monthly reports on performance and immigration judge hiring as directed in the fiscal year 2020 Explanatory Statement and is di- rected to include additional information on the status of hiring other positions that make up the immigration judge teams such as attorneys and paralegals. Finally, the Committee is concerned about a recent Department of Justice petition sent to the Federal Labor Relations Authority requesting the decertification of the Na- tional Association of Immigration Judges. The Committee recog- nizes the importance of our nation’s immigration judges and their ability to unionize.

Immigration Efficiency.—EOIR is encouraged to collaborate with the Department of Homeland Security (DHS) to explore efficiencies with regard to the co-location of DHS and DOJ components with immigration related responsibilities, including immigration courts, DHS asylum officers, medical care practitioners, and both CBP and Immigration and Customs Enforcement (ICE) immigration officers.

Alternatives to Detention (ATD) Program.—The Committee is concerned that many individuals enrolled in ICE’s ATD program will be terminated from the program before their cases are fully re- solved. Getting timely resolution of these cases is complicated by the historic volume of pending cases on EOIR’s non-detained docket schedule. The Committee recognizes the ATD program is managed by ICE, and that EOIR currently lacks information about who is enrolled. However, the Committee also recognizes that the longer an individual remains on ATD while their case is pending before EOIR, the more expensive the ATD program is per enrollee, and the less effective the ATD program is. Prioritizing ATD enrollees’ cases as if they were on the detained docket could potentially in- crease the effectiveness of the program, lower the cost per enrollee, and support more individuals in the program overall. The Com- mittee directs EOIR, in coordination with ICE, to develop an anal- ysis of alternatives to improve the timeliness of resolving cases be- fore EOIR for individuals in the ATD program, and further to con- sider as one such alternative the classification of ATD enrollees as part of the detained docket for purposes of case prioritization. EOIR is directed to brief the Committee on their findings not later than 180 days after the date of enactment of this Act.

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Court Operations during COVID–19.—The Committee under- stands that the novel coronavirus pandemic has forced the majority of Federal Government agencies to alter their normal operating procedures, and changes to court operations is no exception. How- ever, the Committee is frustrated that EOIR relied largely on Twit- ter to communicate its operational status. Many that were travel- ling, especially from Mexico, to appear at immigration court hear- ings, did not receive the updated information that the courts were closed. Even prior to the pandemic, the Committee was troubled by reports concerning the timeliness and receipt of hearing notices, as some were undeliverable as addressed and thus returned to immi- gration courts, and attempts to change addresses with the immi- gration court were often unsuccessful due to current backlogs. As of March 31, 2020, in absentia removal orders were already on the precipice of reaching the total number for all of fiscal year 2019. The Committee is concerned that the pandemic has exacerbated an already confusing process, resulting in an exponential increase in the number of removal orders for respondents who simply did not have the information to appear in court. Therefore, the Committee directs EOIR to submit a report to the Committee, within 90 days of enactment of this Act, that details the specific steps EOIR has taken since March 2020 to accommodate respondents who have missed court appearances due to COVID–19, and steps EOIR has taken to ensure respondents have a centralized mechanism to elec- tronically file an EOIR Form–33 in order to change their address remotely with EOIR, in addition to the current use of paper filings.

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Report language from un-enacted appropriations bills doesn’t have any legal effect. But, it does show that at least on the Democratic side, legislators are beginning to penetrate the various smoke screens that DOJ and EOIR management have used to disguise their gross mismanagement and attacks on due process and to deflect blame to the victims: primarily respondents, their attorneys including pro bono groups, and in many cases their own judges and court staff. It also shows that contrary to DOJ/EOIR propaganda, pro bono programs and Legal Orientation Programs play an essential role in due process.

Let’s be very clear. This “fix-it list” will be ignored by the scofflaw kakistocracy firmly committed to a program of unfairness to migrants, hostility to pro bono organizations, worst practices, demeaning their own employees, not serving the public, and returning asylum seekers to mayhem, torture, and death without due process. However, it is a useful “to do” list for those future judicial leaders and administrators committed to judicial independence and restoring and improving due process and fundamental fairness for all in our Immigration Courts.

Hopefully, in the future, with some needed regime change this will result in an independent Article I Immigration Court replacing the unmitigated legal and management mess that has become EOIR under DOJ control.

Due Process Forever! Clown Courts Never!

PWS

07-14-20

🏴‍☠️🤡KAKISTOCRACY KORNER: Experienced Immigration Judges Flee America’s Star Chambers At Record Numbers As Trump Regime’s Malicious Incompetence Triples Backlog With Twice The Number Of Judges On Bench, According To Latest TRAC Report!

🏴‍☠️🤡KAKISTOCRACY KORNER: Experienced Immigration Judges Flee America’s Star Chambers At Record Numbers As Trump Regime’s Malicious Incompetence Triples Backlog With Twice The Number Of Judges On Bench, According To Latest TRAC Report!

Transactional Records Access Clearinghouse

More Immigration Judges Leaving the Bench

FOR IMMEDIATE RELEASE

The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago. These results are based on detailed records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR) which administers the Courts.

During FY 2019 a record number of 35 judges left the bench. This is up from the previous record set in FY 2017 when 20 judges left the bench, and 27 judges left in FY 2018.

With elevated hiring plus the record number of judges leaving the bench more cases are being heard by judges with quite limited experience as immigration judges.

Currently one of every three (32%) judges have only held their position since FY 2019. Half (48%) of the judges serving today were appointed in the last two and a half years. And nearly two-thirds (64%) were appointed since FY 2017.

While the Court is losing many of its most experienced judges, the backlog of cases continues to balloon. It is now almost three times the level when President Trump assumed office.

Update on Disappearing Immigration Court Records

Records continue to disappear in the latest data release for updated court records through the end of June 2020. The report provides the latest statement from EOIR Chief Management Officer Kate Sheehey about this matter.

To read the full report on Immigration Judges leaving the bench as well as the Sheehey statement, go to:

https://trac.syr.edu/immigration/reports/617/

TRAC’s free web query tools which track Immigration Court proceedings have also been updated through June 2020. For an index to the full list of TRAC’s immigration tools and their latest update go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

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Look folks, I’m not disputing that Susan B. Long and David Burnham of TRAC are smart people. I’m even willing to speculate that they are smarter than most of the folks still in so-called public service (that largely isn’t any more) in all three branches of our failing Government.

But, are they really that much smarter than Supreme Court Justices, Article III Federal Judges, and Legislators who have let this grotesquely unconstitutional, dysfunctional, and deadly Star Chamber masquerading as a “court system” right here on American soil unfold and continue its daily abuses right under their complicit noses? Or, do we have too many individuals in public office lacking both the human decency and moral courage to stand up against institutionalized racism, unnecessarily cruelty, corruption, and pure stupidity, all of which very clearly are prohibited by both the due process and equal protection clauses of our Constitution, not to mention the 13th and 15th Amendments. It’s not rocket science!

Enough with the Congressional and Court-enabled “Dred Scottification” of the other! That’s how we ended up with things like the “Chinese Exclusion Act” and “Jim Crow” and why we have an institutionalized racism problem now.

Instead of standing up for equal justice for all under the Constitution, the Supremes and Congress often have willingly been part of the problem — using the law knowingly and intentionally to undermine constitutionally required equal justice for all and an end to racism. And, we can see those same attitudes today, specifically in the Supremes’ ridiculously wrong, intellectually dishonest, and cowardly decisions “greenlighting” various parts of White Nationalist Stephen Miller’s bogus program of dehumanizing asylum seekers and immigrants of color. This is not acceptable performance from Justices of our highest Court!

We need better, more courageous, and more intellectually honest public officers in all three branches who are willing to stand up for individual rights, human lives, and the common good over bogus right wing legal doctrines and inhumanity cloaked in legal gobbledygook. It won’t happen overnight. But, a better America starts with throwing a totally corrupt, cruel, and maliciously incompetent President and his GOP enablers out of every public office at every level of government this November.

This November, vote like your life depends on it! Because it does!

PWS

07-14-20

🛡⚔️⚖️ROUND TABLE RIPS REGIME’S FRAUDULENT PROPOSED REGS ELIMINATING ASYLUM IN 36-PAGE COMMENTARY — “The proposed rules are impermissibly arbitrary and capricious. They attempt to overcome, as opposed to interpret, the clear meaning of our asylum statutes.”

Knightess of the Round Table

Asylum Ban Reg Comments_July 2020_FINAL

INTRODUCTION

In their introduction, the proposed regulations misstate the Congressional intent behind our asylum laws.2 Since 1980, our nation’s asylum laws are neither an expression of foreign policy nor an assertion of the right to protect resources or citizens. It is for this reason that the notice of proposed rulemaking must cite a case from 1972 that did not address asylum at all in order to find support for its claim.

The intent of Congress in enacting the 1980 Refugee Act was to bring our country’s asylum laws into accordance with our international treaty obligations, specifically by eliminating the above- stated biases from such determinations. For the past 40 years, our laws require us to grant asylum to all who qualify regardless of foreign policy or other concerns. Furthermore, the international treaties were intentionally left broad enough in their language to allow adjudicators flexibility to provide protection in response to whatever types of harm creative persecutors might de- vise. In choosing to adopt the precise language of those treaties, Congress adopted the same flexibility. See e.g. Murray v. The Schooner Charming Betsy, 6 U.S. 64 (1804), pursuant to which national statutes should be interpreted in such a way as to not conflict with international laws.

The proposed rules are impermissibly arbitrary and capricious. They attempt to overcome, as opposed to interpret, the clear meaning of our asylum statutes. Rather than interpret the views of Congress, the proposed rules seek to replace them in furtherance of the strongly anti-immigrant views of the administration they serve.3 And that they seek to do so in an election year, for political gain, is clear.

In attempting to stifle clear Congressional intent in service of its own political motives, the ad- ministration has proposed rules that are ultra vires to the statute.

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

Read our full comment at the above link.

Special thanks to the following Round Table Team that took the lead in drafting this comment (listed alphabetically):

Judge Jeffrey Chase

Judge Bruce Einhorn

Judge Rebecca Jamil

Judge Carol King

Judge Lory Diana Rosenberg

Judge Ilyce Shugall

Due Process Forever! Crimes Against Humanity, Never!

PWS

07-14-20

10 LEGAL REPAIRS FOR A POST-CLOWN 🤡 WORLD — From Jennifer Rubin @ WashPost

https://www.washingtonpost.com/opinions/2020/07/12/ten-ideas-post-trump-reform/

President Trump granting clemency to his crony Roger Stone, who served as the go-between for the Trump campaign and WikiLeaks, on practically the eve of Stone’s incarceration for multiple crimes attendant to his coverup on behalf of the president, is grotesquely corrupt but unsurprising. Stone virtually confessed to a quid pro quo, telling Howard Fineman, “He [Trump] knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t.” Silence for clemency. A separate system of justice for the president’s henchmen. This is the very definition of corruption.

“By this action, President Trump abused the powers of his office in an apparent effort to reward Roger Stone for his refusal to cooperate with investigators examining the President’s own conduct,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and Oversight and Reform Committee Chairwoman Carolyn B. Maloney (D-N.Y.) said in a written statement released Friday. “No other president has exercised the clemency power for such a patently personal and self-serving purpose.”

Stone’s clemency should remind all Americans of the necessity of removing Trump at the ballot box and seeking a full accounting of Attorney General William P. Barr’s role in running interference for the president (e.g., spinning the Mueller report, turning a blind eye toward criminality in the Ukraine scandal, intervening to block Stone’s and Michael Flynn’s punishments). It should remind voters that if not for the spinelessness of every Republican senator save Utah’s Mitt Romney, Trump would not have survived impeachment to seek vengeance on witnesses (e.g., Lt. Col. Alexander Vindman), corruptly protect his friends and incompetently manage a pandemic, leading to the unnecessary deaths of tens of thousands. With the pardon of Stone, we can affirm that Maine Republican Sen. Susan Collins’s assertion that he learned his lesson from impeachment was delusional.

In 2019, The Post’s editorial board argued the president tried to manipulate the justice system, wrongdoing that Congress must not let go. (The Washington Post)

However, we will need far more than an electoral shellacking of Republicans to address the damage Trump has done to the Justice Department and the rule of law. Ten simple measures would begin to repair our justice system:

1. A thorough redo of the special counsel/independent counsel law is necessary. The counsel’s final report should be issued to Congress and/or the courts, depriving a potentially corrupt attorney general or president the opportunity to pre-edit or spin it. Additional legislation should clarify that a special counsel is empowered to make specific findings of illegality. The DOJ guidelines preventing prosecution of the president while still in office should be revisited.

2. Congress must reassert the power of the purse. The executive branch must report all holds/impounds on congressionally appropriated funds. “Emergency” powers should be reexamined, tightened and clarified to prevent the sort of unilateral misappropriation of funds we saw regarding the wall.

3. Severe criminal penalties should be exacted for revealing the identity of whistleblowers or threatening and/or punishing federal employees for providing truthful testimony.

4. A new, speedy enforcement mechanism is required for contempt of Congress citations, allowing lawmakers to get a swift and definitive resolution of its conflicts with the executive branch.

5. We need a barrier between the White House and Justice Department to prevent political interference in specific cases, targets of investigation and prosecutorial recommendations. Any such communications must be logged and made available to the inspector general and/or Congress.

. . . .

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Get the rest of the article with five more good ideas at the above link.

An essential that should have been #1 on the list: An independent Article I Immigration Court with an open, merit-based judicial selection process involving public input!

This November, vote like your life depends on it! Because it does!

PWS

07-13-20

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