Hon. Jeffrey Chase – Page 15 – immigrationcourtside.com

HON. JEFFREY S. CHASE: The Drama Of Immigration Court!

Feb 10 All The World’s A Stage (including the 2d Cir.!)

“How did we get here? How the hell…

Pan left – close on the steeple of the church.”

Jonathan Larson, “Halloween,” from Rent

The above lines popped into my head as I sat in an ice-cold dressing room in the basement of Judson Memorial Church in Greenwich Village just prior to curtain for the final performance of the world premiere run of Waterwell’s play The Courtroom. I was performing the role of the judge in the final scene who conducts a naturalization ceremony in which the journey of the protagonist, Elizabeth Keathley, through the immigration system ends with her becoming a U.S. citizen. The castwas comprised of stars of stage and screen, including a Tony Award winner, and a Tony nominee and Obie, Drama League, and Outer Critics Circle winner. “How did I get here?”

The Courtroomis the result of the inspired vision of Waterwell’s co-founder, Arian Moayed, himself a Tony-nominated Broadway actor who currently plays Stewie on the HBO hit Succession. A civic-minded theater company, Waterwell has staged musicals written during WW II aboard The Intrepid with a cast of actors and veterans, and a bilingual Farsi-English production of Hamlet set in 1918 Tehran. (Waterwell also runs an incredible educational program with New York City High School students, and its film division produces the Emmy-nominated web series The Accidental Wolf.)

An immigrant himself, Arian was moved by his own family history to respond to the present immigration climate, and took the unorthodox approach of seeking out actual immigration court transcripts to serve as the script. The production’s wonderful associate producer, Madelyn Murphy, quickly connected with Chicago immigration attorney Richard Hanus. He suggested the case of Elizabeth Keathley, whose path to a green card based on her marriage to a U.S. citizen was put in jeopardy over an innocent mistake regarding voter registration while applying for a driver’s license. Years later, Elizabeth prevailed on appeal to the 7th Cir. Court of Appeals in Keathley v. Holder, when Chief Judge Frank Easterbrook was persuaded by Hanus’s argument that the criminal common-law defense of entrapment by estoppel should apply in the immigration law context.

The script for the first act of The Courtroomis the verbatim transcript of Ms. Keathley’s immigration court proceedings in 2008. The script for the second act is the verbatim oral argument before the 7th Cir. and the panel’s written decision. So instead of a piece written by a playwright seeking to make a statement about our immigration system, one case plucked from that system was allowed to speak for itself. I had the pleasure of attending the first table read-through at Waterwell’s Manhattan offices. I remember Arian asking “Will this work as drama?” but he had a strong feeling that it would, and his instincts proved right.

What I found compelling about the case was that everyone involved in the immigration court hearing was respectful, professional, and thoughtful. After witnessing the complete immigration court hearing, the audience does not feel animosity towards the judge or ICE attorney. Nevertheless, the wrong result was reached. To me, an important theme is that of faith in an imperfect system – and not only the faith of the protagonist and her loving husband who are unexpectedly caught in a system they don’t understand, or of the brilliant lawyer who perseveres knowing that the correctness of his argument is no guarantee of a satisfying outcome. It also speaks to the faith that our justice system requires from society, a point I touched on in my stage remarks.

Waterwell’s managing director, Adam Frank, came up with the idea for a third act portraying Elizabeth’s naturalization ceremony. Adam told me the idea was inspired by his hearing Arian speak emotionally about his own naturalization, an experience that native-born Americans never have. So in the last act, the entire audience is naturalized. The role of the judge in that last scene was played by actual judges. My fellow former immigration judge, Betty Lamb, sitting immigration judge Mimi Tsankov, Magistrate Judge Sanket J. Bulsara of the Eastern District of New York, and myself took turns playing the role. And each of us were allowed to write our own remarks following the oath. This imbued each performance with a personalized view of the process in the words of actual judges who have performed these ceremonies in real life. My remarks are copied below.

I was first invited to perform at one of the two performances held inside the main courtroom of the U.S. Court of Appeals for the Second Circuit, in the Thurgood Marshall Courthouse in lower Manhattan. (Other performances were held at Fordham Law School, St. Mark’s Church in the East Village, and Judson Church). For the courthouse performances, audience members had to have their names on a list, go through security, and check their cell phones at the door. I still can’t believe that I was fortunate enough to perform on the stage of the Second Circuit Court of Appeals, a once in a lifetime experience. The courtroom held an energy unlike any of the other venues. The setting created the sense of watching an actual hearing in a real courtroom, without the usual sense of separation when sitting in the audience watching a play on a stage. As one of the actors pointed out, in the courtroom performances, when he read the line “please rise,” the whole audience rose to its feet without hesitation.

Ruthie Ann Miles, Kathleen Chalfant, Happy Anderson, Kristin Villanueva, Linda Powell, Michael Braun, Michael Bryan French, Mick Hilgers, and Hanna Cheek comprised the brilliant cast. Lee Sunday Evans’ inspired direction had to contend not only with the unorthodox nature of the script, but with the constantly changing layouts and acoustics over the four different venues. In the hands of these outstanding professionals, it all worked beautifully.

The real-life Keathleys and Richard Hanus traveled to New York and attended two of the performances, sitting in the audience just a few rows behind the actors portraying them.

I was left in awe of the talent and dedication of all involved; it was also without exception the warmest, kindest group of individuals I have ever had the privilege to be involved with. Thanks to all of them for briefly welcoming me into their world.
Hereis a link to a New York Times’ article about the play.

My remarks from the naturalization ceremony:

“It is my great honor and pleasure to congratulate you all and address you for the first time as fellow citizens of the United States. Performing these ceremonies is undoubtedly the best part of my job. Judges have a number of powers, but none is greater or more humbling than the act we just performed together. Just a few minutes ago, you were citizens of many different countries. But by raising your hands and repeating an oath, you all instantly, almost magically, became citizens of the United States. To fully comprehend the significance of this, think back to the first time you ever heard of this country – maybe from a book or in a movie, or through a family friend or relative who was visiting from America. Imagine if you were told at that moment that you would be standing here today as an American citizen. Hopefully, that memory will capture the wonder of this great ceremony.

For some of you, the path to U.S. citizenship may have been short and without incident; others might have traveled a longer, more difficult road to arrive here today. Regardless, you should all be congratulated on reaching this most important milestone.

You should not feel a sense of loss today. American citizenship does not erase your past; to the contrary, it simply adds a new dimension to who you already are. We are a country of hyphenated Americans. Whether we are Mexican-American, African-American, Iranian-American, or Filipino-American, we should all wear our heritage as a source of pride, as the culture, thoughts and traditions that we bring to the American experience makes all of us richer.

There are of course responsibilities that come with citizenship. I’m going to mention two such responsibilities today. First, you have the responsibility to perform jury duty if called upon to do so. In a democracy, faith in our judicial institutions is paramount. However, our courts will not always reach the right result. But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy. It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.” To keep this public trust, we must all try our best every day to get it right. Your participation in this system as part of a jury of one’s peers, and your fairness in trying to reach the correct result under the law is crucial to this process.

The other responsibility I want to mention today is the responsibility to vote. As a U.S. citizen, your vote counts the same as that of anyone else, no matter how rich or powerful they may be. You should exercise that right by voting responsibly and often. No election is too small for you to exercise your right to vote. As Abraham Lincoln famously said in his Gettysburg Address, this is a government of the people, by the people and for the people. As of today, you all now share the responsibility for ensuring that those words remain true.

Once again, congratulations!”

Copyright 2019 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

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

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Thanks, Jeffrey. I’m speaking with Adam Frank tomorrow about how we might use this production as a teaching vehicle in a number of contexts!

I always said that being an immigration was “50% scholar, 50% performing artist.”

And, congrats to “Our Gang” member, retired Immigration Judge Betty Lamb on making her stage debut!

Watch the “trailer/teaser” for “The Courtroom” here:

http://waterwell.org/watch-the-courtroom-trailer/

PWS

02-11-19

HON JEFFREY S. CHASE: Trump’s Disingenuously Named “Migrant Protection Protocols” Are Anti-American – “As the late Arthur Helton wrote more than 25 years ago, ‘A basic measure of a civilized society is the way it treats strangers.’”

https://www.jeffreyschase.com/blog/2019/2/10/wait-in-mexico-policy-access-to-counsel-amp-crime

Feb 10 Wait in Mexico Policy, Access to Counsel, & Crime

A February 1, 2019 article in the L.A. Timesreported that two American attorneys who work for the immigrant rights organization Al Otro Lado, which has sent attorneys to Tijuana to offer advice to Central American refugees seeking to apply for asylum in the U.S., were stopped by Mexican immigration officials while attempting to enter that country. The attorneys were detained and questioned, and eventually denied entry because their passports had been “flagged.” One of the lawyers was actually traveling to Mexico on a family vacation, and was separated from her husband and 7-year-old daughter at the airport and taken to a separate room where she was interrogated. Her crying daughter was eventually allowed to join her; the two were held for 9 hours and forced to sleep on a cold floor without food or water before being sent back to the U.S. Two journalists who had been covering the issue of refugees seeking asylum at the U.S.-Mexico border suffered the same experience. The Mexican government denied responsibility for the “flagging;” one of the journalists was told “the Americans” were responsible.

One of my first reactionsto the remain in Mexico policy was the impact it would have on access to counsel. I have heard disturbing first-hand reports from individuals who have traveled to Tijuana to provide legal assistance to refugees there. When crossing back to the U.S., American citizens identified by Customs and Border Patrol officers as “activists” have been harassed by being sent to secondary inspection, where they have been questioned and, remarkably, have had the contents of their electronic devices accessed by DHS agents. A means of avoiding such treatment was to fly directly to Mexico. However, the reported policy of flagging the passports of attorneys engaged in such work has undermined that route as well. Thus, attorneys are being treated like criminals for the “crime” of doing their job of providing legal assistance to asylum seekers.

While DHS focuses on such imaginary “crime,” it willfully ignores the actual crime to which those asylum seekers forced to wait in Mexico are exposed. In a letterto DHS Secretary Kirsjen M. Nielsen, the American Immigration Council, American Immigration Lawyers Association, and Catholic Legal Immigration Network reported that 90.3% of asylum seekers surveyed said that do not feel safe in Mexico; 46% stated that either themself or their child had suffered harm in Mexico, and 38.1% reported mistreatment at the hands of the Mexican police. Female asylum seekers accompanied by their minor children reported suffering crimes in Mexico including rape, sexual assault, kidnaping, extortion, and death threats.

Keep in mind that the Administration has shamelessly named its wait-in-Mexico policy the “Migrant Protection Protocols.” Instead, the policy exposes asylum seekers (including vulnerable unaccompanied children and families) to crime and police harassment, while restricting their access to counsel.

Access to counsel is increasingly critical to Central American asylum seekers, many of whose claims require proving that their fear is on account of their membership in a particular social group. Where fear is of non-governmental persecutors, applicants must further establish that the government is unable or unwilling to control such actors, and that internal relocation to another part of the country was not reasonable. Meeting these criteria requires an applicant to offer complex legal theories, and to support such claims with affidavits, reports, and articles from one or more experts. Without legal assistance, this is a daunting task for refugees (some of whom are families or children) living under difficult conditions (including the above-mentioned exposure to crime and government harassment) on the Mexico side of the border. Under present BIA precedent, an asylum seeker who is just a little off in formulating their particular social group (even if they included one word too many or too few) is stuck with such formulation, and may not amend it should they be fortunate enough to obtain counsel to assist them with their appeal. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).

The Trump Administration’s policies towards Central American asylum seekers has consistently run counter to our country’s international treaty obligations. The Administration has tried to argue that those fleeing to our country are not truly refugees, falsely painting them (in the words of a Human Rights First release) as “frauds, security threats, and dangerous criminals.”

By undertaking efforts on so many fronts to make it increasingly more difficult for such claimants to succeed in their asylum applications, the Administration seeks to paint the resulting drop in grant rates as “proof” that such claims are “fraudulent.” In criminally prosecuting those who eventually try to cross the border when they are no longer to endure the conditions under which refugees are forced to wait in Mexico, the Administration cites such convictions as “proof” that the refugees are “criminals.” The Administration seems to view the flight to the U.S. as a choice, and believes that its deterrence policies might convince refugees to simply return to their home countries.

Such view is at odds with reality. This December articleby Prof. Karen Musalo in the Yale Journal of Law & Feminismadds further corroboration to the many reports detailing the horrible violence Central American refugees are fleeing. And the World Migration Project at the Columbia Univ. School of Journalism continues to track those who have suffered harm (including death) following their deportation from the U.S.; its findings also counter the Administration’s position that those fleeing are not truly refugees, and that repatriation is a viable option.

As the late Arthur Helton wrote more than 25 years ago, “A basic measure of a civilized society is the way it treats strangers.” Similarly, Jorge Ramosrecently wrote in Timemagazine that “countries are judged by the way they treat the most vulnerable, not the rich and powerful.” Our government’s policies towards asylum seekers (including its most recent efforts to interfere with that population’s ability to retain counsel), and its willingness to expose such a vulnerable population to harm (including murder and rape) shames us all.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

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

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Feb 10 All The World’s A Stage (including the 2d Cir.!)

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As Jeffrey and I have pointed out a number of times before, a “bona fide Administration” could resolve the “self-created non-crisis” at the Southern Border simply by:

Following existing asylum laws;
Generously granting asylum in accordance with the Refugee Act of 1980, the Supreme Court’s decision in INS v. Cardoza-Fonseca, the BIA’s precedent in Matter of Mogharrabi, and the Handbook;
Working with NGOs, pro bono groups, bar associations, “Big Law,” the religious community, and affected states and localities to provide easy access to counsel and achieve universal representation of asylum seekers, which, in turn:
- has a proven strong correlation to court appearances;
- makes most detention unnecessary, and most important,
- safeguards Due Process and the rule of law.

Clearly, these measures could be accomplished more quickly and for far less than the $5.7 billion that Trump so desperately wants to waste on his Wall. And, other than perhaps a few “tweaks” to allow some U.S. Government funding of pro bono and “low bono” representation projects, they would not require a major rewrite of current statues.

By sharply reducing unnecessary and wasteful “civil immigration detention” (a/k/a the “New American Gulag” or “NAG”) and the many legal challenges it generates, the money and litigation time, on both sides, could be redirected at actually solving the problems, rather than making them worse.

PWS

02-11-19

CHASE, SCHMIDT, & THE REST OF “OUR GANG” READY TO “STEP UP” TO TEACH ASYLUM LAW FOR FURLOUGHED U.S. IMMIGRATION JUDGES! – Read The Latest From Hon. Jeffrey Chase On How Asylum Law Can Be Properly Interpreted To Save Lives (What It’s Supposed To Do) & “Move” Dockets Without Curtailing Anyone’s Rights!

https://www.jeffreyschase.com/blog/2019/1/20/ijs-grant-gender-based-asylum-claims

Jan 20 IJs Grant Gender-Based Asylum Claims

As my friend Paul Schmidt announced on his excellent blog immigrationcourtside.com, immigration judges in San Francisco and Arlington, VA recently issued written decisions granting asylum to victims of domestic violence. Notably, the decisions concluded that “Mexican females” and “women in Honduras” constituted cognizable particular social groups under applicable case law, including the former Attorney General’s decision in Matter of A-B-.

Asylum advocates have sought for many years to have the Board of Immigration Appeals recognize a particular social group defined by gender alone. However, the BIA has declined to consider the issue.1 The need for such guidance from the Board has increased significantly since the issuance of Matter of A-B- last June. Even under the holdings of that decision, gender continues to meet all of the criteria for a cognizable particular social group, as gender is an immutable characteristic fundamental to one’s identity, is sufficiently particular to provide a clear benchmark for inclusion, is socially distinct in all societies, and is not defined by the harm which gives rise to the applicant’s fear of persecution.

In the seven months since Matter of A-B- was issued, the BIA has yet to respond with a precedent decision affirming the continued viability of domestic violence-based asylum claims. Nor has the BIA affirmed that gender alone may constitute a cognizable particular social group for the above reasons, in spite of the fact that its members have had years to consider the issue, and could rely on so many outstanding legal sources on the topic. The BIA showed an ability to respond quickly in issuing a precedent decision in only two months time following the Supreme Court’s decision in Pereira v. Sessions. So the present silence should be interpreted as a specific choice by the BIA to remain silent, likely motivated by its fear of upsetting its higher-ups in the present administration.

In the absence of guidance from the BIA, and while waiting for appeals to work their way through the circuit courts (I am aware of appeals relating to this issue currently pending in the First and Fourth Circuits), the two recent immigration judge decisions are encouraging. In the San Francisco case, Judge Miriam Hayward (who has since retired from the bench) found “Mexican females” to constitute a cognizable particular social group. In Arlington, Assistant Chief Immigration Judge Deepali Nadkarni made the same finding for the group consisting of “women in Honduras.” Redacted copies of their written decisions may be read here: http://immigrationcourtside.com/wp-content/uploads/2019/01/SF-IJ-Hayward-DV-PSG-grant.pdf; http://immigrationcourtside.com/wp-content/uploads/2019/01/Nadkarni-Grant-Women-in-Honduras-PSG.pdf

In addition to their particular social group analysis, both decisions conclude that at least one central reason for the persecution suffered was the asylum applicant’s membership in the gender-defined group. For example, in the San Francisco case, Judge Hayward found such nexus was established by a combination of specific statements made by the male persecutor (i.e. “a woman’s only job was to shut up and obey her husband,” and “I’m the man and you’re going to do what I say”); a report of an expert on domestic violence citing gender as a motivating factor for domestic violence; and a statement in a multi-agency report that violence against women in Mexico “is perpetrated, in most cases, to conserve and reproduce the submission and subordination of them derived from relationships of power.”

In her decision, Judge Nadkarni held that the size of the group defined by gender does not prevent it from being defined with particularity, and noted that the BIA “has routinely recognized large groups as defined with particularity.” It also bears mentioning that the ICE prosecutor in Judge Nadkarni’s case “conceded that the Honduran police was unable or unwilling to protect the respondent…” Without such concession in her case, Judge Hayward found that country reports and Mexican law itself were sufficient to establish that the government was unable or unwilling to protect the respondent even under the heightened standard expressed by the former AG in Matter of A-B-.

As I stated in an earlier article, immigration judges have received no guidance or training from EOIR in analyzing domestic violence claims in the aftermath of Matter of A-B-. As a result, some immigration judges remain uncertain as to whether the law allows them to grant such claims at present. It is hoped that these decisions will serve as a useful template for judges. It seems particularly instructive that one such decision was issued by Judge Nadkarni, a management-level judge who supervises all immigration judges sitting in the Arlington, Batavia, Buffalo, and Charlotte Immigration Courts, as well as the Headquarters court which hears cases remotely by televideo. Judge Nadkarni is the direct boss of V. Stuart Couch, the Charlotte-based immigration judge whose refusal to grant asylum as directed by the BIA in Matter of A-B- led to the former Attorney General’s certifying that case to himself.

Congratulations to attorneys Kelly Engel Wells of Delores Street Community Services and Mark Stevens of Murray Osorio PLLC for successfully representing the asylum applicants.

In light of these decisions, and in the absence of guidance from EOIR, our group of former immigration judges and BIA members would be happy to provide sitting judges with outside training and resources on this topic. Interested judges may contact me, and perhaps we can set up group training sessions for furloughed judged during the present shutdown.

Notes:

See, e.g. Matter of A-R-C-G-, 26 I&N Dec. 388, 395, n. 16, acknowledging the argument of amici “that gender alone should be enough to constitute a particular social group in this matter,” but declining to reach the issue.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

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

EOIR would do much better if it were to lose the venomous “(junior) partner of DHS Enforcement, no sympathy, compassion, or kindness for the most vulnerable among us, and scofflaw” persona that it acquired under White Nationalist AG Jeff “Gonzo Apocalypto” Sessions and act more like a real court of law (or at least a fair and impartial quasi-judicial tribunal) again.

While there is zero chance of it happening, soon to be AG Bill Barr (who grotesquely has painted himself as a great admirer of his biased and incompetent predecessor) would do himself and our country a great and lasting service if he hired a retired Federal Judge with a strong record in (positive) humanitarian law, individual due process, and court administration (e.g., a “reincarnation” of the late Judge Patricia Wald) to run and rebuild EOIR with a Due Process, independent adjudication, and judicial efficiency focus, and kept the politicos out of the process, no matter how much they might complain or not like fair results on the “deportation railway.” But, not going to happen till we get “regime change.”

Viewing “law enforcement” as a solemn responsibility to insure that individuals’ rights are protected, individuals are treated fairly regardless of status, creed, gender, or race, and that life-saving protection is generously granted whenever legally possible is as much a part of the Attorney General’s Constitutional responsibility as booting folks out of the country. It’s sad, disturbing, and very damaging to our country, that so few Attorneys General have taken this responsibility seriously, particularly in recent years.

PWS

01-21-18

HON. JEFFREY S. CHASE — USCIS RACISTS TARGET BLACK HAITIANS: As Evidence Unfolds In Federal Court, The Blatant Racism & Dishonesty Of USCIS Politicos In Bogus Termination Of TPS Becomes A Matter Of Public Record!

https://www.jeffreyschase.com/blog/2019/1/7/haiti-tps-and-racial-bias

Jan 7 Haiti, TPS, and Racial Bias

This morning, the trial begin in Saget v. Trump, before District Judge William Kuntz in the Eastern District of New York. As your Brooklyn observer, I attended the opening hours of what is likely to be a two or three day trial.

The basis for the case is the Trump administration’s termination of Temporary Protected Status (“TPS”) for Haitians who have been present in the U.S. since January 12, 2011, and remain unable to return due to conditions in that country following a massive earthquake in 2010, a 2016 hurricane, and a major cholera epidemic. 59,000 Haitians in the U.S. are presently in TPS status, a number too large for the Haitian government to presently absorb if returned en masse.

TPS is not asylum, and offers no permanent status in this country. It was created by Congress in 1990 to afford blanket protection to nationals of countries to which return is currently untenable for a variety of reasons, including armed conflict, natural disaster, rampant disease, or the inability of the country to absorb the mass repatriation of its nationals. Such designation is granted in intervals of 6 to 18 months, and is reviewed by the Department of Homeland Security (“DHS”) at least 60 days before the end of each designated period. The law only allows TPS status to be terminated where such review finds that the conditions for designation no longer exist in the country; otherwise, the period of TPS is to be extended. In the case of Haiti, after being designated for TPS in early 2010, such designation was extended in 18-month increments continually until the coming of the Trump Administration in 2017.

DHS, within its subcomponent, USCIS, has a Country Conditions Unit. I know that unit’s director, LeRoy Potts, and met with him and some of his senior staff when I oversaw EOIR’s country conditions database during my time at the BIA. They are knowledgeable, fair-minded, and in my experience, issued accurate reports free of political influence. The Country Conditions Unit is generally consulted in TPS decisions. As it had in the past, the Unit again drafted a report finding serious problems in Haiti that would call for an extension of TPS.

However, as the Plaintiffs’ counsel noted in his opening statement, Robert T. Law, previously director of the vehemently anti-immigration lobby group ironically known by the acronym FAIR, who under the Trump administration was made a senior policy advisor to USCIS (which is mind-boggling on its own), decided that the Country Condition Unit’s memo was “overwhelmingly weighted for extension which I do not think is the conclusion we are looking for.” According to petitioner’s counsel, Law edited the document (with the blessing of the USCIS chief policy strategist, Kathy Nuebel Kovarik) in 35 minutes, without further research. https://nationaltpsalliance.org/wp-content/uploads/2018/08/DPP-3349-EX-3.pdf According to the opening statement, the only research requested by the administration was for evidence that Haitians in the U.S. had criminal records or received public assistance, a clear attempt to discredit a nationality using racial stereotypes. Plaintiff’s counsel stated that the USCIS Country Conditions Unit characterized DHS’s final version of the report used to justify its termination of TPS for Haiti as “complete fiction.”

The Plaintiffs called as their first witness Ellie Happel, an expert on country conditions in Haiti and resident of that country from 2011 to 2017, who took apart the DHS memo sentence by sentence. For example, Happel explained the meaninglessness of DHS’s claim that 98 percent of internal displacement camps (“IDPs”) in Haiti have been closed. Happel stated that the majority who left the camps did so due to actual or threatened forced eviction, and many did not return to durable housing. When one settlement, Canaan, was decertified as an IDP camp, it statistically eliminated 50,000 people from the list of those internally displaced. However, those 50,000 people continue to live on the site of the former camp, a windswept, previously uninhabited land far from government services.

Happel cited a report (also referenced in the USCIS report) that a minimum of 500,000 homes would have to be constructed to meet the housing needs of the Haitian population. Happel also testified in convincing detail to continued food insecurity, political instability, an economy marred by a 2 billion dollar debt to Venezuela caused by misappropriation or embezzlement of funds by government officials, and a continued susceptibility to cholera following one of the worst epidemics of the disease in recent history.

Why would DHS’s leadership go to such lengths to fabricate a fictitious report to justify returning 59,000 Haitians to such conditions before it was advisable to do so? The plaintiffs pointed to the answer in the statements of President Trump himself, made a few months earlier to members of Congress, in which he referenced predominantly black nations as “shithole countries” (the presiding judge insisted on the use of the unedited quote), questioned “why do we need more Haitians? (whom he previously claimed “all have AIDS”); and stated his preference for immigrants from places such as Norway. The government’s attorney somehow managed to keep a straight face when claiming in response that DHS’s acting Secretary had reached the decision to terminate independent of Trump’s opinions.

Sadly, Haitians have suffered a long history of unfair treatment under our country’s immigration laws. In his excellent 1998 law review article “Race, the Immigration Laws, and Domestic Race Relations: A ‘Magic Mirror’ Into the Heart of Darkness,” Prof. Kevin R. Johnson wrote “No U.S. policy approached…the government’s extraordinary treatment of Black persons fleeing the political violence in Haiti.” When the U.S. Supreme Court in its 1993 decision in Sale v. Haitian Centers Council, Inc., upheld the policy initiated by President George H.W. Bush, and surprisingly continued under President Clinton, of repatriating intercepted Haitians without first screening the returnees to see if they qualified for refugee status, Justice Brennan argued in dissent that the Haitian refugees “demand only that the United States, land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse, and death. We should not close our ears to it.”

Sadly, 25 years later, our nation’s most openly racist president continues to advocate for policies of extraordinary cruelty towards Haitians. And seemingly without embarrassment, many of his underlings are happy to go to extreme lengths to carry out such policies, the admirable exception being the USCIS Country Conditions Unit.

It was heartwarming to see the large team of lawyers, paralegals, and expert witnesses united in Judge Kuntz’s courtroom to continue to fight against such cruelty. Among those in attendance were Ira Kurzban, one of the plaintiff’s lawyers, and Michael Posner, founder and former director of Human Rights First, both of whom were early defenders of Haitian rights in the 1980s. To see them working alongside a younger generation of attorneys and experts, such as Happel, the director of NYU Law School’s Haiti Project, and Florida attorney Kevin Gregg reminded this aging attorney that the struggle for immigrants’ rights will be passed on to most capable hearts and hands.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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Tal Kopan has unearthed some of this in an earlier post based on documents obtained under the FOIA. https://wp.me/p8eeJm-2rC

Gotta wonder about the ethics of DOJ lawyers defending the indefensible in Federal Court.

PWS

01-09-19

HON. JEFFREY S. CHASE: 6th Cir. Correctly Rejected BIA’s Disingenuous Approach To Res Judicata In Jasso! — Time To End The “Chevron Farce” In Immigration Cases!

https://www.jeffreyschase.com/blog/2018/12/31/6th-cir-reverses-bia-on-res-judicata

JEFFREY S. CHASE OPINIONS/ANALYSIS ON IMMIGRATION LAW

Dec 31 6th Cir. Reverses BIA on Res Judicata

In the final days of 2017, the Board of Immigration Appeals issued a precedent decision in Matter of Jasso Arangure.1 The respondent in that case, a longtime permanent resident, had been convicted of first-degree home invasion under Michigan law. ICE had placed him into removal proceedings because it claimed the conviction constituted an aggravated felony as a “crime of violence” under section 101(a)(43)(F) of the Immigration and Nationality Act. Although the immigration judge agreed with ICE, Mr. Jasso won his appeal because the 6th Circuit Court of Appeals, in another case, found the concept that a crime that in itself was not violent (i.e. home invasion) could be considered a “crime of violence” because hypothetically, a violent confrontation could occur, was unconstitutionally vague. As a result, Mr. Jasso’s case was terminated because the government had not met its burden of proof.

Two days later, the government commenced another case against Mr. Jasso. It again charged him, on the basis of the exact same home invasion conviction, of being removable as an aggravated felon, but this time, instead of labeling it a crime of violence, ICE argued that it met the definition of an aggravated felony burglary offense under section 101(a)(43)(G) of the Act. Mr. Jasso moved to terminate, arguing that the new proceedings were barred by the doctrine of res judicata, which forbids relitigating the same issue between the same parties where the matter has already reached a final judgment on the merits. The immigration judge did not terminate, and ordered the respondent removed.

On appeal, the BIA affirmed. The BIA had to acknowledge that res judicata had been found to apply in the administrative law context, and that the Board itself had applied the similar doctrine of collateral estoppel in its own precedent decisions. Nevertheless, the BIA concluded that it would be too burdensome “to require the DHS to present all possible bases for removal in a single proceeding.” That statement is remarkably misleading. In this case, it would have required the ICE attorney at most two extra minutes to add the additional charge of “burglary” to the original “crime of violence” charge. If ICE somehow neglected to do this in the original charging document, an ICE attorney could have added the additional charge later, a common practice.

The BIA added that “whether a particular offense is an aggravated felony is a legal determination affected by complex laws that are in constant flux,” the implication being how can we punish the poor DHS for not anticipating an unexpected change in law. But the same BIA proved the disingenuousness of this approach less than six months later, following former Attorney General Jeff Sessions’ decision in Matter of A-B-. Four days later, when the BIA decided an appeal that had been argued and decided while Matter of A-R-C-G- was still a precedent decision that was commonly relied on to grant domestic violence cases, the BIA did not say “a grant of asylum is a legal determination affected by complex laws that are in constant flux,” and remand the matter to allow the applicant to reformulate her arguments under the four-day-old decision. To the contrary, the Board said “the Attorney General has foreclosed the respondent’s arguments,” and dismissed the appeal with no meaningful analysis.2

Fortunately, Mr. Jasso appealed to the Sixth Circuit, which issued its decision in the final days of 2018. Under a concept known as Chevron deference, circuit courts must defer to the BIA’s interpretation of a statute if and only if the statutory language being interpreted is ambiguous. In recent years, the trend has been for the circuit courts to find the language ambiguous and accord such deference. In this case, it would have been particularly easy for the court to do so, because the Immigration and Nationality Act is completely silent as to whether the concept of res judicata should apply in removal proceedings.

However, the Sixth Circuit did something extraordinary. It first noted that the Supreme Court has recently taken the circuit courts to task for being too quick to find a statute ambiguous,3 and therefore decided to exercise due diligence before reaching such determination in the present case. And even though there was no statutory language at all, the court took the extra step of turning to “canons,” which it defined as “general background principles that courts have developed over time to guide statutory interpretation.” The court noted one such canon in particular, which presumes “that general statutory language incorporates established common-law principles (like res judicata) unless ‘a statutory purpose to the contrary is evident.’” Pursuant to a lengthy, detailed analysis, the court concluded that the canon should properly be applied in removal proceedings, which renders the statute unambiguous, meaning that res judicata applies.

The Sixth Circuit next examined whether “a statutory purpose to the contrary is evident.” The Court noted that the statutory burden of proof that Congress put on DHS to prove removability by “clear and convincing evidence” “would be rendered ‘largely meaningless’ if DHS could repeatedly bring one proceeding after another until it got the result it wanted.”

The BIA had tried to support its decision below by reading into the Act a clear Congressional intent to remove noncitizens convicted of aggravated felonies and other crimes, determining that a concept such as res judicata shouldn’t apply where it would interfere with such a clear Congressional intent. The Board concluded that the purpose for res judicata, which it expressed as “the public interest in the finality of administrative judgments,” was no match for “Congress’ clear intent” to remove noncitizens convicted of crimes.

The Sixth Circuit had a wonderful reply, finding the Board’s approach “suggests courts can simply ignore the enacted text and instead replace it with an amorphous ‘purpose’ that happens to match with the outcome one party wants.” The court further pointed out the ridiculousness of the Board’s approach, as, since Congress always wants its statutes to be enforced, res judicata could always be viewed as an obstacle, and so such reading would have the effect of rendering the whole common-law presumption “meaningless.” The court wisely concluded that “statutes are motivated by many competing – and often contradictory – purposes” which “Congress addresses…by negotiating, crafting, and enacting statutory text. It is that text that controls, not a court’s after-the-fact reevaluation of the purposes behind it.”

Having ruled that res judicata could be applied, the court found that three of the four requirements for applying res judicata were met. The court concluded that both proceedings involved the same facts, as they were both based on the same Michigan conviction, and that the different basis for the aggravated felony charge lodged by DHS was not a new fact, but rather a different legal theory of a party. The court also found that there was no dispute that both proceedings involved the same parties, and that DHS could have lodged the burglary charge in the earlier proceedings. The only remaining question was whether the first proceeding concluded in a final judgment. As the court found it unclear from the record whether the termination of the initial proceedings was with or without prejudice, it remanded the record for the BIA to consider the question in the first instance.

Regardless of the outcome on remand, the decision is important, as the doctrine of res judicata will again be available (at least in the Sixth Circuit) to preclude ICE from subjecting noncitizens to multiple removal proceedings due to the Government’s lack of preparation. The decision might also signal the application of a tougher standard for determining whether Chevron deference is due to BIA precedent decisions. In a footnote, the Sixth Circuit pointed out that “many members of the Supreme Court” have questioned Chevron deference, including present Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. The Supreme Court recently granted certiorari in a case concerning the continued viability of the related concept of Auer deference, according deference to an agency’s interpretation of its own regulations.4 Let’s hope that the circuit courts will in the future be less inclined to rely on Chevron to afford the BIA a free pass, and instead be more likely to take the Board to task for its poorly-reasoned, result-driven decisionmaking.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

Notes

27 I&N Dec. 178 (BIA 2017).

Matter of M-J- (unpublished decision, June 15, 2018).

See, e.g. Pereira v. Sessions, 138 S.Ct. 2105, 2121 (Kennedy, J., concurring).

4. Kisor v. Wilkie, 899 F.3d 1360 ( cert. granted (U.S. Dec. 10, 2018) (No. 18-15).

JEFF CHASE

Jeffrey and I agree that the Circuit Courts like the 6th are finally taking a long-overdue more critical approach to giving the BIA so-called “Chevron deference.” By now, the Article III Courts should be catching on that the BIA recently has been stretching statutory interpretation in any way possible to favor the DHS’s view in almost all published cases. This is even when the alternate interpretation offered by the respondent is closer to the statutory language, would be more practical, and/or would produce a more reasonable outcome. In most cases, the consequences at stake for the individual respondent are far, far greater than those at stake for the DHS.

And, the concept that clearly biased “know nothing” enforcement zealots like Sessions and Whitaker should be given any deference whatsoever in their political roles as Attorney General is beyond preposterous. The “Supremes-created” doctrine of “Chevron deference” (a/k/a “Judicial Task Avoidance”) was based largely on the assumption of both an objective deliberative administrative process and a high degree of technical expertise. Neither of these apply any more to the BIA, let alone to hacks like Sessions and Whitaker.

I believe that the time has come for the Supremes to overrule “Chevron” and resume doing their primary judicial function of interpreting the law. That, of course, would not prevent the Article III Courts from deferring on a case-by-case to particularly persuasive or well-reasoned agency decisions (so-called “Skidmore deference” which was the predecessor to Chevron) where appropriate. But, even if Chevron deference continues as a general proposition, there are compelling reasons for no longer applying it to administrative adjudications under the immigration laws.

PWS

01-03-19

PROFESSOR KAREN MUSALO: Persecution Of Women In El Salvador On The Basis Of Gender Is Real & Endemic – The Administration’s Attempts To Skew The Law Against Women Refugees Is Totally Dishonest, Immoral, & Illegal!

https://cgrs.uchastings.edu/sites/default/files/Musalo_El%20Salvador_A%20Peace%20Worse%20Than%20War_30%20Yale%20J.L.%20&%20Fem.%203_20018.pdf

Here’s part of the conclusion of Karen’s article “EL SALVADOR–A PEACE WORSE THAN WAR: VIOLENCE, GENDER AND A FAILED LEGAL RESPONSE” published at 30 Yale Journal of Law & Feminism 3 (2018):

Historical and contemporary factors have given rise to the extremely high levels of violence that persist in El Salvador today. Many of the Salvadorans interviewed for this article referred to a “culture of violence” going back to the brutal Spanish Conquest and continuing into more recent history, including the 1932 Matanza and the atrocities of the country’s 12-year civil war. Gender violence exists within this broader context. However, as almost every Salvadoran source noted, violence against women is even more deeply rooted than other expressions of societal violence as the result of patriarchal norms that tolerate and affirm the most extreme forms of domination and abuse of women.

. . . .

Levels of violence, including the killings of women, have continued to rise, while impunity has remained a constant. Criticism of the persistent impunity for gender violence resulted in El Salvador’s most recent legal development: the enactment of Decree 286, which created specialized courts. However, the exclusion of the most commonly committed gender crimes–intrafamilial violence and sexual violence–from the specialized courts’ jurisdiction, and the courts’ hybrid structure, which requires that cases still be initiated in the peace courts, do not inspire optimism for positive outcomes.

Notwithstanding these considerable obstacles, the Salvadorans interviewed for this article, who have long struggled for access to justice and gender equality, maintain the hope and the belief that change is possible. In the course of multiple interviews over a six-year period (2010 to 2016), Salvadoran sources have expressed deep frustration and disappointment but have not articulated resignation or defeat.

. . . .

The Salvadorans who I interviewed for this article have provided information, insights, and perspectives that are simply not available in written reports or studies. Although they come from a range of backgrounds–governmental and non-governmental; legal professionals as well as grassroots activists–they all acknowledge the complex causes of societal violence. As discussed throughout this article, they also have specific critiques and prescriptions for what must be done in order to see any real progress. Discussions of the country’s crisis, as well as of the international community’s response, must start by listening to the voices of the Salvadorans who, despite the seemingly intractable situation of violence and impunity in which they live, have refused to abandon the struggle for justice and equality. They are inspiring in their courage and resilience. By quoting extensively from these sources, this article has sought to amplify their voices.

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Read Karen’s complete article at the above link.

Compare real scholarship and honest reflection of the experiences of women in El Salvador affected by this seemingly unending wave of persecution with the intentionally bogus picture painted by Jeff Sessions in Matter of A-B-. Hopefully, advocates will be able to use the research and expertise of Karen and others like her to enlighten fair-minded Asylum Officers and Immigration Judges, support their efforts to grant women the protection they merit as contemplated by the Refugee Act and the Convention Against Torture, and force the Article III Courts and eventually Congress to consign Sessions’s intentionally perverted reasoning to the dustbin of “Jim Crow Misogynist History” where it belongs.

Many thanks to my good friend and colleague in “Our Gang,” Judge Jeffrey Chase, for passing this link to Karen’s important scholarship along.

Due Process For All Forever!

PWS

12-31-18

NOTORIOUS CHILD ABUSER JEFF SESSIONS ALSO TARGETED REFUGEE WOMEN & GIRLS FOR DEATH, RAPE, TORTURE, & OTHER MAYHEM — HIS EVIL PLANS HIT A ROADBLOCK: THE LAW! — Read The Latest Commentary From Hon. Jeffrey S.Chase On Challenges To Sessions’s Effort To Pervert The Law — Matter of A-B- In Light Of Grace v. Whitaker!

https://www.jeffreyschase.com/blog/2018/12/24/how-far-reaching-is-the-impact-of-grace-v-whitaker

Dec 24 How Far Reaching is the Impact of Grace v. Whitaker?

Six months after a significant number of U.S. immigration judges cheered a decision intended to revoke the hard-earned right of domestic violence victims to asylum protection, immigration advocates had their chance to cheer last week’s decision of U.S. District Court Judge Emmet G. Sullivan in Grace v. Whitaker. The 107-page decision blocks USCIS from applying the standards set forth in a policy memo to its asylum officers implementing the decision of former Attorney General Jeff Sessions in Matter of A-B-. Judge Sullivan concluded that “it is the will of Congress – and not the whims of the Executive – that determines the standard for expedited removal,” and therefore concluded that the policy changes contained in the USCIS memo were unlawful.

In his decision in Matter of A-B-, Sessions stated that “generally, claims…pertaining to domestic violence or gang violence will not qualify for asylum.” In a footnote, Sessions added “accordingly, few such claims would satisfy the legal standard to determine whether an [asylum applicant] has a credible fear of persecution.” Read properly, neither of those statements are binding; they are dicta, reflecting Sessions’ aspirations as to how he would like his decision to be applied in his version of an ideal world. However, both the BIA and the author of the USCIS policy memo forming the basis of the Grace decision drank the Kool Aid. The BIA almost immediately began dismissing domestic violence cases without the required individualized legal analysis. And USCIS, in its memo to asylum officers, stated that in light of A-B-, “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may…pass the ‘significant probability’ test in credible fear screenings.”1

If one reads Matter of A-B- carefully, meaning if one dismisses the more troubling language as non-binding dicta, its only real change to existing law is to vacate the precedent decision in Matter of A-R-C-G- which had recognized victims of domestic violence as refugees based on their particular social group membership.2 A proper reading of A-B- still allows such cases to be granted, but now means that the whole argument must be reformulated from scratch at each hearing, requiring lengthy, detailed testimony of not only the asylum applicant, but of country experts, sociologists, and others. Legal theories already stipulated to and memorialized in A-R-C-G- must be repeated in each case. Such Sisyphean approach seems ill suited to the current million-case backlog.

However, the BIA and the USCIS memo chose to apply Sessions’ dicta as binding case law, an approach that did in fact constitute a change in the existing legal standard. When the Department of Justice argued to the contrary in Grace, Judge Sullivan called shenanigans, as USCIS’s actual application of the decision’s dicta to credible fear determinations harmed asylum applicants in a very “life or death” way. The judge also reminded the DOJ of a few really basic, obvious points that it once knew but seems to have forgotten in recent years, namely (1) that the intent of Congress in enacting our asylum laws was to bring our country into compliance with the 1951 Convention on the Status of Refugees; (2) that the UNHCR’s guidelines for interpreting the 1951 Convention are useful interpretive tools that should be consulted in interpreting our asylum laws, and (3) that UNHCR has always called for an expansive application of “particular social group.” Judge Sullivan further found that as applied by USCIS, the should-be dicta from A-B- constitutes an “arbitrary and capricious” shift in our asylum laws, as it calls for a categorical denial of domestic violence and gang-based claims in place of the fact-based, individualized analysis our asylum law has always required.

How far reaching is the Grace decision? We know that the decision is binding on USCIS asylum officers, who actually conduct the credible fear interviews. But is the decision further binding on either immigration judges or judges sitting on the Board of Immigration Appeals?

USCIS of course is part of the Department of Homeland Security. Immigration judges and BIA members are employees of EOIR, which is part of the Department of Justice. Its judges are bound by precedent decisions of the Attorney General, whose decisions may only be appealed to the Circuit Courts of Appeal. However, the credible fear process may only be reviewed by the U.S. District Court for the District of Columbia, and only as to whether a written policy directive or procedure issued under the authority of the Attorney General is unconstitutional or otherwise in violation of law.3 This is how Grace ended up before Judge Sullivan. The BIA and Immigration Judges generally maintain that they are not bound by decisions of district courts.

Despite these differences, the credible fear interviews conducted by USCIS are necessarily linked to the immigration court hearings of EOIR. An asylum officer with USCIS recently described the credible fear interview process to me as “pre-screening asylum cases for the immigration judge.” The credible fear process accounts for the fact that that the applicant has not had time yet to consult with a lawyer or gather documents, might be frightened, and likely doesn’t know the legal standard. But the purpose of the credible fear interview is to allow the asylum officer to gather enough information from the applicant to determine if, given the time to fully prepare the claim and the assistance of counsel, there is a significant possibility that the applicant could file a successful claim before the immigration judge. The credible fear standard has always been intended to be a low threshold for those seeking asylum. Before A-B-, a victim of domestic violence was extremely likely to meet such standard. The USCIS memo reversed this, directing asylum officers to categorically deny such claims. But now, pursuant to Grace, USCIS must go back to approving these cases under the pre-A-B- legal standard.

When an asylum officer finds that the credible fear standard has not been met, the only review is before an immigration judge in a credible fear review hearing. Although, as stated above, EOIR generally argues that it is not bound by district court decisions, its immigration judges would seem to be bound by the Grace decision in credible fear review hearings. Congress provided the district court the authority to determine that a written policy directive of the AG (which was implemented by the USCIS written policy memo) relating to the credible fear process was in violation of law, and Judge Sullivan did just that. Even were EOIR to determine that the decision applies only to USCIS, the IJ’s role in the credible fear review hearing is to determine if USCIS erred in finding no credible fear. If USCIS is bound by Grace, it would seem that IJs must reverse an asylum officer’s decision that runs contrary to the requirements of Grace.

But since the credible fear standard is based entirely on the likelihood of the asylum application being granted in a full hearing before an immigration judge, can EOIR successfully argue that its judges must apply Grace to conclude that yes, a domestic violence claim has a significant chance of being granted at a hearing in which the IJ will ignore the dicta of A-B-, find that the only real impact of the decision was that it vacated A-R-C-G-, and will thus apply an individualized analysis to an expansive interpretation of particular social group (with reference to UNHCR’s guidelines as an interpretive tool)? And then, once the case is actually before the court, ignore Grace, and apply what appears to the be BIA’s present approach of categorically denying such claims?

Many immigration judges are presently struggling to understand Matter of A-B-. The decision was issued on the afternoon of the first day of the IJ’s annual training conference. This year’s conference was very short on legal analysis, as the present administration doesn’t view immigration judges as independent and neutral adjudicators. But the judges tapped for the asylum law panel had to throw away the presentation they had spent months planning and instead wing a program on the A-B- decision that they had only first seen the prior afternoon. Needless to say, the training was not very useful in examining the nuances of the decision. As a result, fair-minded judges are honestly unsure at present if they are still able to grant domestic violence claims.

Of course, a decision of a circuit court on a direct challenge to A-B- would provide clarification. However, A-B- itself is presently back before the BIA and unlikely to be decided anytime soon.4 I am aware of only one case involving the issue that has reached the circuit court level, and it is still early in the appeal process. My guess is that EOIR will issue no guidance nor conduct specialized training for its judges on applying A-B- in light of the Grace decision. Nor will the BIA issue a new precedent providing detailed analysis to determine that a domestic violence claimant satisfied all of the requirements set out in A-B- and is thus entitled to asylum.

A heartfelt thanks to the team of outstanding attorneys at the ACLU and the Center for Gender and Refugee Studies for their heroic efforts in bringing this successful challenge.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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Four of the “scummiest” things about Sessions’s decision in Matter of A-B-.

Sessions is a biased prosecutor with well-know racist proclivities who had no business acting as a quasi-judicial decision maker in A-B-;
A-B- was purposely decided in a procedural context that made it impossible for the respondent to immediately challenge it in the Circuit Court;
Nevertheless, the untested dicta in A-B- cynically was used by USCIS to cut off access to the hearing system for refugee women who were unfairly returned to dangerous situations with no appeal rights;
Some U.S. Immigration Judges improperly used A-B- to “rubber stamp” these illegal denials of access to the hearing system, often mocking Due Process by barring the participation of attorneys attempting to represent refugee women and children.

There are few things more despicable than those charged with fairness and protecting the rights of others abusing their authority by screwing the most vulnerable among us!

PWS

12-26-18

“OUR GANG” OF RETIRED JUDGES ISSUES STATEMENT ON GRACE v. WHITAKER!

Thanks to “Our Leader” Judge Jeffrey Chase for making this happen!

Retired Immigration Judges and Former Member of the Board of Immigration Appeals Statement on Grace v. Whitaker

December 19, 2018

Today’s decision in Grace v. Whitaker provides a lesson in what it truly means to return to the rule of law. In a 107-page decision, Judge Sullivan reminded the current administration of the following truths: that more than 30 years ago (in a decision successfully argued by our former colleague,Immigration Judge Dana Marks), our nation’s highest court recognized that the purpose of the 1980 Refugee Act was to honor our international treaty obligation towards refugees, and that the language of that treaty was meant to be interpreted flexibly, to adapt to changes over time in the agents, victims, and means of persecution, and to be applied fairly to all. The decision affirms that our asylum laws are meant to be applied on an individual, case-by-case basis and not according to a predetermined categorical rule. The decision wisely considered the interpretation of the UNHCR Handbook, and afforded it greater weight than the personal agenda of a former Attorney General in determining our legal obligations to afford protection to refugees who are victims of domestic violence.

The decision imposes a permanent injunction on DHS from applying the awful decision of the former Attorney General in Matter of A-B- in its credible fear determinations. This reasoned decision will prevent this administration from continuing to deny women credibly fearing rape, domestic violence, beatings, shootings, and death in their countries of origin from having the right to their day in court. We applaud Judge Sullivan’s just decision, as well as the truly heroic efforts of the lawyers at the ACLU and Center for Gender and Refugee Studies that made such outcome possible. We also thank all of the attorneys, organizations, judges, experts, and others whose contributions lent invaluable support to this effort.

Hon. Steven R. Abrams

Hon. Sarah M. Burr

Hon. Teofilo Chapa

Hon. George T. Chew

Hon. Jeffrey S. Chase

Hon. Cecelia M. Espenoza

Hon. Noel Ferris

Hon. John F. Gossart, Jr.

Hon. Rebecca Jamil

Hon. William Joyce

Hon. Carol King

Hon. Elizabeth A. Lamb

Hon. Margaret McManus

Hon. Charles Pazar

Hon. George Proctor

Hon. John Richardson

Hon. Lory D. Rosenberg

Hon. Susan Roy

Hon. Paul W. Schmidt

Hon. Polly A. Webber

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Thanks to Jeffrey and the rest of the “Gang” for speaking out so promptly and forcefully!

PWS

12-20-18

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

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

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

Best, Jeff

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

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

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

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

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

PWS

12-14-18

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

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

Sophia writes in an article that was published at LexisNexis:

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

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

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

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

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

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

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

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

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

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

Sophia is absolutely correct!

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

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

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

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

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

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

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

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

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

PWS

12-13-18

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

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

Dec 13 EOIR’s Creates More Obstacles for Families

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

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

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

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

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

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

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

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

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

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

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

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

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

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

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

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

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

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

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

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

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

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

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

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

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

Copyright 2018 Jeffrey S. Chase. All rights reserved.

REPRINTED WITH PERMISSION

JEFF CHASE

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

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

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

December 6, 2018

ORDER

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

        I. Factual Findings

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

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

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

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

        II. Legal Standard

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

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

        III. Discussion

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

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

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

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

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

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

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

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

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

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

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

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

        B. The Defendant Suffered Prejudice¹

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

Page 7

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

        IV. Conclusion

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

        Accordingly,

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

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

        DATED this 6th day of December, 2018.

        /s/_________

        UNITED STATES DISTRICT JUDGE

——–

Footnotes:

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

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

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

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

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

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

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

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

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

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

PWS

12-10-18

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

Hon. Jeffrey Chase reports:

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

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

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

and

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

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

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

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

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

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

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

Stay tuned.

PWS

12-03-18

ETHICS FREE ZONE – DHS AND DOJ OFFICIALS & THEIR LAWYERS SIT AROUND DISCUSSING HOW BEST TO VIOLATE LAWS AND SCREW ASYLUM SEEKERS — “‘Credible fear’ was created over 20 years ago to be the standard for those arriving and not deemed admissible. It was designed to be a low bar, as those at the border have just arrived, are often scared of government officials, are sometimes traumatized, usually don’t yet have legal counsel, and have very limited ability to gather evidence,” [Retired Immigration Judge] Chase told BuzzFeed News. “Imposing a higher standard for political purposes would be contrary to our treaty obligation to not return genuine refugees.”

https://www.buzzfeednews.com/article/hamedaleaziz/trump-asylum-mexico-waiting-disagree

Hamed Aleaziz reports for BuzzFeed News, quoting extensively from “Our Gang” Leader Hon. Jeffrey Chase:

WASHINGTON — Homeland Security and Justice Department officials are feuding over a controversial plan that would force asylum-seekers at the southwestern border to remain in Mexico until their cases are decided, according to sources close the administration.

Department of Justice officials have been pushing for asylum-seekers at the border to be immediately returned to Mexico as they arrive at the border, instead of first undergoing screening for fear of persecution or torture if they are not allowed in.

Department of Homeland Security officials want asylum-seekers screened for persecution, torture, and fear before being immediately returned to Mexico, to ensure that there are no serious concerns for their safety in Mexico.

The dispute highlights the fact that key details regarding the plan are still up in the air.

A Justice Department official said there was no dispute over the screening process but that the matter was under consideration between both agencies. The official said the discussion between the two US departments were “a normal part of the process.” DHS declined to comment.

Jeffrey Chase, a former immigration judge, said the dispute goes to the very heart of asylum law, which grants foreigners who otherwise would not be admissible the right to enter the country if they can show that they have a “credible fear” of persecution if they are returned to the country they came from.

“‘Credible fear’ was created over 20 years ago to be the standard for those arriving and not deemed admissible. It was designed to be a low bar, as those at the border have just arrived, are often scared of government officials, are sometimes traumatized, usually don’t yet have legal counsel, and have very limited ability to gather evidence,” Chase told BuzzFeed News. “Imposing a higher standard for political purposes would be contrary to our treaty obligation to not return genuine refugees.”

BuzzFeed News reported earlier this month that the administration had been considering such a plan and that discussions with Mexico had been ongoing. The Washington Post reported last week that a deal had been agreed upon with Mexico and that asylum-seekers would remain in that country while their cases were being adjudicated. But that story was later denied by Mexican officials, and the status of any talks is uncertain. A new administration takes office in Mexico on Saturday.

The proposal was first focused on individuals who come to a port of entry to request asylum but has since been extended to include those apprehended between border crossings as well, sources said.

The discussions appear to be a renewed effort to implement a directive first raised in an executive order that President Donald Trump signed in the early days of his administration in 2017. The Mexican government publicly rejected that plan, and the Trump administration made no effort to implement the president’s instructions.

In the executive order, Trump had directed the Department of Homeland Security Secretary to pursue the option. In a memo written by then-DHS chief John Kelly, officials were told to return individuals at the border “to the extent appropriate and reasonably practicable.” Kelly cited a statute that states that certain individuals can be sent back to the contiguous country they arrived from.

Advocates have said that implementation of such a measure would put families and migrants in danger and would be quickly challenged in court.

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

Well said, Jeffrey! There was a day, obviously in the past, when DOJ lawyers were concerned with assuring compliance with the law and applicable court decisions, rather than thinking of various ways to “push the envelope” by engaging in facially illegal, and certainly immoral, conduct. Hopefully, such evasion of both their oaths of office and ethical standards will be considered by future employers in the private sector.

The irony here is that with a different Administration in place, cooperation among the U.S., Mexico, and the UNHCR in ways that strengthened the Mexican asylum system, improved conditions for refugees and asylees in Mexico, encouraged regular refugee processing by both countries in or near the Northern Triangle, improved reception and processing for those at the U.S. border, and most important, constructively addressed the problems in the Northern Triangle forcing folks to flee would be a win-win-win-win for all involved.

The flow of refugees from the Northern Triangle is primarily a humanitarian, not a law enforcement situation. Among other things, a humanitarian approach would promote advantages of applying in Mexico and reasons why it could be a rational choice for some asylum seekers; it would eschew illegal threats, cynically and intentionally created inhumane, even life-threatening, conditions, and improper sanctions to “deter” individuals from asserting their legal rights to apply for asylum in the U.S. under both our law and international law. Sadly, all of the latter are exactly what the Trump Administration is engaged in at present, with the assistance of their ethically-challenged Government “legal” team.

PWS

12-01-18

“OUR GANG” IN ACTION: 9th CIR. REMANDS JENNINGS V. RODRIGUEZ, KEEPS INJUNCTION IN EFFECT, HINTS THAT ADMINISTRATION SCOFFLAWS COULD BE IN FOR ANOTHER BIG LOSS! – Will We See The End Of Indefinite Mandatory Immigration Detention & A Resurgence Of The Fifth Amendment?

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/19/13-56706.pdf

“Our Gang” of Retired U.S. Immigration Judges continues to play a key role in defending Due Process and advancing the cause of justice in America! Here’s what one of our leaders, Judge Jeffrey Chase, had to say about the latest case decided in accordance with the arguments made in our Amicus Brief:

Hi all: I hope everyone had a wonderful Thanksgiving. It seems just before the holiday, the Ninth Circuit issued a decision in Rodriguez v. Marin (the remand of the Jennings case from the Supreme Court concerning indefinite detention). 20 of us were amici on a brief filed with the 9th Cir. drafted by a team at Wilmer Hale headed by Adriel Cepeda-Derieux.

The Supreme Court remanded for consideration of the constitutional question, which the district court, on remand, will consider in the first instance. The following language by the Circuit Court from its decision is heartening:

Like the Supreme Court, we do not vacate the permanent injunction pending the consideration of these vital constitutional issues. We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of our American government.

Stay tuned! Attached is a link to the full decision, and a PDF copy of our amicus brief. Best, Jeff

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/19/13-56706.pdf

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

Great language from the Ninth Circuit. Sadly, however, unconstitutional conduct and mockery of the rule of law, particularly in connection with immigration matters is a mainstay of this “Scofflaw Administration.” (I will note that the Obama Administration took the same “thumb your nose at our Constitution” position as Trump has in this long-running case.)

Trump and his DOJ lawyers like to advertise that they consider the Supremes “bought and paid for” and that they fully expect the GOP-appointed majority to “take a dive” every time the Administration wants to bend the law or operate in a “Constitution free” zone. As an indication of their total contempt for the judicial process and their belief that the “own” a majority of the Supremes, they have taken the almost unprecedented step in a number of key cases of trying to “short-circuit” the normal judicial process in the lower Federal Courts by going straight to the Supremes with the pleas for intervention.

But, in this case, they are likely to be out of luck. The case has already been to the Supremes and they quite pointedly “punted” it back to the Ninth Circuit and the U.S. District Court. As the Ninth Circuit notes in its remand opinion, the Fifth Amendment constitutional issue is straightforward and was fully briefed by the parties before the Supremes. But, it’s obvious that the Supremes wanted no part of it at that time.

So, it’s highly unlikely that the Supremes will intervene before the case works its way back up through the District Court and the Ninth Circuit, a process that will take months, if not years. Meanwhile, the injunction against indefinite detention without bond hearings remains in effect within the Ninth Circuit, which generates the largest number of immigration cases.

If Chief Justice Roberts really wants to demonstrate judicial independence and fair and impartial justice within the Third Branch this is his chance (along with Justices Gorsuch and Kavanaugh, who both would do well to put some distance between themselves and Trump) to show it in actions, not just rhetoric!

He squandered his opportunity in the “Travel Ban” case. If nothing else, he can now see that rather than respectfully considering his “warning shots,” Trump has specifically ignored them and treated the Chief Justice with the same utter contempt as he treats the spineless lackeys who surround his presidency.

But, the good thing about “judging,” at any level, is that you often get a chance to redeem yourself for past mistakes. Whether Roberts has the judicial integrity and leadership skills to pull it off, remains to be seen.

This also should be a “warning shot” to the DOJ that former AG Sessions’s vile plan (which he left unfinished when Trump unceremoniously axed him) to undo bond for asylum applicants who pass credible fear, on the basis of a clearly bogus and contrived reading of the Supreme’s Jennings v. Rodriguez remand, is likely to be found unconstitutional and therefore “DOA” in the Ninth Circuit.

PWS

11-27-18

Feb 10 All The World’s A Stage (including the 2d Cir.!)

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Feb 10 Wait in Mexico Policy, Access to Counsel, & Crime

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Jan 20 IJs Grant Gender-Based Asylum Claims

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Jan 7 Haiti, TPS, and Racial Bias

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Dec 31 6th Cir. Reverses BIA on Res Judicata

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Dec 24 How Far Reaching is the Impact of Grace v. Whitaker?

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

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

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

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

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

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