"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“The IJ granted Omorodion’s application for deferral of removal under the CAT and, after an initial remand by the BIA, reaffirmed that decision. In July 2018 the BIA vacated the IJ’s grant of CAT relief and ordered Omorodion removed, concluding that Omorodion did not show that she would suffer torture or that public officials would acquiesce in her torture. … First, Omorodion argues that the BIA mischaracterized and ignored key evidence. We agree. … The BIA also erred by failing to apply the clear error standard in its review of the IJ’s “predictive finding that [Omorodion] would suffer torture by or with the acquiescence of the Nigerian government.” … The BIA erred as a matter of law when it overlooked such evidence and rejected the IJ’s predictive finding. To summarize, we grant the petition and remand because the BIA overlooked material components of the record and misconstrued others. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir. 2009). Should the BIA vacate the IJ’s grant of CAT relief on remand, it should explain where it identifies clear error in the IJ’s factfinding based on the totality of the record. If any vacatur is not due to clear error, the BIA must otherwise “provide sufficient explanation to permit proper appellate review” of its decision. Hui Lin Huang, 3 677 F.3d at 137. For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”
“We remand for the agency to conduct the required factfinding and analysis regarding the reasonableness of Perez Nagahama’s delay in filing her asylum claim following her changed circumstances. An asylum applicant must file an asylum “application . . . within 1 year after the date of . . . arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). There is an exception for “changed circumstances which materially affect the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). Where there is such a change, the applicant must file an application “within a reasonable period given those ‘changed circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). The IJ concluded and the BIA assumed that Perez Nagahama’s circumstances changed materially when she began living as openly gay in April 2015. What is a reasonable period for filing after a changed circumstance is a fact-specific inquiry: IJs should make specific “findings of fact with respect to the particular circumstances involved in the delay of the respondents’ applications” to determine the reasonableness of the delay. Matter of T-M-H- & S-W-C-, 25 I. & N. Dec. 193, 195–96 (B.I.A. 2010). … Perez Nagahama has raised a reviewable question of law that the agency failed to apply the proper standard because it did not consider her specific circumstances before concluding that her delay was unreasonable. … The agency did not conduct the required factfinding and analysis. … Here, the IJ did not make findings of facts regarding the reasonableness of the delay in light of the attendant circumstances. The BIA should have remanded to the IJ to consider whether the delay was reasonable. … Instead, the BIA made its own factual determinations that Perez Nagahama beginning to live as openly gay did not make her delay reasonable and that the other facts she pointed to were not related to this underlying changed circumstance. Compounding this issue, the BIA gave no reasoning for its conclusion that the relevant circumstance made her delay unreasonable.”
[Hats off to Genet Getachew!]
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Clearly, the BIA’s performance in this and other recent CA remands is far below even the “good enough for government work” mantra that prevails at Garland’s dysfunctional EOIR! Why does Garland think “NOT good enough for government work” is “goodenough for due process for ‘persons’ who happen to be foreign nationals” with the their lives at stake in his “smashed to smithereens” piece of our “justice” system?
The only way Garland gets to where his EOIR is today is by “Dred Scottification:” That is, intentionally treating “persons” (“humans”) in his Immigration Courts as “non –persons” under the Due Process Clause of our Constitution. If that sounds like a “Stephen Miller wet dream”🤮 (grotesque as that image undoubtedly is), it’s because that’s exactly what it is! How does a Dem Administration get away with this affront to due process, equal protection, and racial justice in America?
Kind of makes me wonder what they taught at Harvard Law (Garland’s alma mater) and other so-called “elite” law schools. I daresay that virtually all law students I have encountered in teaching immigration and refugee law for a number of years at Georgetown Law would have done better than the BIA had these cases been on my final exams.
The BIA’s inability to fairly and competently apply basic legal standards, honestly and professionally evaluate evidence of record, give asylum applicants the “benefit of the doubt” to which they are entitled under international standards, provide positive practical expert guidance on granting relief, eliminate “asylum free zones,” promote uniform outcomes, and develop and enforce “best judicial practices” is a major factor in the incredible two million case backlog that Garland has built in Immigration Court! His failure to take corrective action by replacing the BIA with competent, expert, unbiased appellate judges is a major breach of both ethical standards and his oath of office! How does he get away with it?
Thousands of asylum applicants at our border are being illegally returned to danger! Individuals with valid claims to be in the United States are routinely being denied relief for specious reasons and clear misapplications of basic legal standards in his “courts” —powerful indicators of systemic bias that should have been forcefully addressed by Garland on “day one” of his tenure at EOIR, as experts recommended.
Garland’s victims’ lives are irrevocably ruined or even ended! Misery is inflicted on their family, loved ones, and American communities! Dedicated lawyers working overtime to save lives are mistreated by Garland’s courts and traumatized by sharing the horrible consequences to their clients of systemic inferior judging! America is denied legal immigrants we need!
Our Federal justice system is overwhelmed with wasteful and never-ending litigation of immigration cases that should have been timely granted in the first instance and bad policies that never should have seen the light of day. In this respect, note that the IJ actually got it right in Omorodion! Then, in attempting to accommodate DHS and achieve an illegal removal, the BIA completely botched it on appeal! Even where justice prevails at the “retail” level, the BIA screws it up!
Yet Garland just shows up for work and draws his paycheck as if this were the way “justice” is supposed to work in America and fixing it is “below his pay level!” Gimmie a break!
Meanwhile, back at the ranch, many congrats and much appreciation to NDPA stalwarts Tom Moseley and Genet Getachew!
I am particularly honored to recognize the litigation greatness of my long-time friend, former INS colleague, and NDPA litigation icon 👍🏼🗽 Tom Moseley. He honed his complex litigation skills as an INS Special Assistant U.S. Attorney for the Southern District of NY during my tenure as Deputy General Counsel and Acting General Counsel at the “Legacy INS.”
Since leaving INS decades ago, Tom has been a tower of “practical impact litigation” and “Life-Saving 101” in New Jersey and beyond. Thanks for all you do, my friend!
WASHINGTON – Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.
But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally.
The Salvadorans sued in 2015 and the Supreme Court will hear their appeal Monday in a case that has drawn little attention in Washington even as it has raised significant questions about the Biden administration’s approach to immigration – not to mention the status of hundreds of thousands of immigrants living in a state of limbo.
. . . .
“Look, this is a no brainer,” said Paul Wickham Schmidt, a Georgetown University law professor and former immigration judge. “Why waste time on it? The administration has indicated they’d like to regularize many [TPS beneficiaries] and…instead they’re defending a gimmick cooked up by Stephen Miller,” Trump’s onetime policy adviser.
. . . .
“Integrate them into our society rather than leaving them in permanent limbo – in theory, that’s what the Biden administration says it wants to do,” said Schmidt, the former immigration judge. “Only here’s their first chance to make it happen and they don’t connect the dots.”
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Read John’s complete article at the above link.
Yeah, I know this brain-dead position originated in the Obama Administration. I’d never accuse the Obama Administration of overall having a wise, informed, or consistent approach to immigration. But, the “precedents” at issue here were issued under Trump. SeeMatter of H-G-G-, 27 I. & N. Dec. 617 (AAO 2019); Matter of Padilla Rodriguez, 28 I. & N. Dec. 164 (BIA 2020).
Any time you see folks like Ira Mehlman @ FAIR or Christopher Hajec @ Immigration Reform Law Institute endorsing a position you can bet that there is a link to the cruel, White Nationalist policies of Stephen Miller and his cronies in the Trump Administration. If you had any doubt that the position being taken by the Garland DOJ was stupid policy, Mehlman’s and Hajec’s endorsements, and the organizations they represent, should resolve them.
Ignoring your potential friends and supporters; embracing the “racist right.” Interesting way to get started on what was promised to be a “smarter, kinder, more humane” approach to immigration policy. Can anyone really tell me what Judge Garland is doing over @ DOJ? The once highly regarded jurist who testified before Congress and was only a Mitch McConnell away from a seat on the Supremes seems to have all but disappeared into a bureaucratic fog of incompetence, bad lawyering, and missed opportunities @ the DOJ!
Look, after four years of senselessly, wastefully, and disgracefully trying to dump on long-time, contributing members of our society in TPS, like Jose & Sonia, the Trump Administration (thankfully for America) never removed any of them. The idea that the Biden Administration will do so is absurd.
So these folks are here for the duration. With Congress in deadlock, the most practical, legal, readily available way of getting tens of thousands of hard-working residents like Jose and Sonia fully integrated into our society and on their way to citizenship is simply by following the clear statutory language as other Circuit Courts have done. These are individuals who actually have met all the criteria of our legal immigration system! Most now have families with U.S. citizens. Why on earth would we want to keep those we should welcome in limbo? It’s cruel, counterproductive, and stupid!
For a much more scholarly and nuanced approach to DOJ’s wrong-headed handling of this case, check out this article in Just Security by my friend, renowned immigration expert, former senior executive in the Clinton and Obama Administrations (we actually met while working on the Refugee Act of 1980 in the Carter Administration — back when we were young), emeritus Professor David A. Martin:
I also note with pleasure that counsel of record for Jose and Sonia is Jamie W. Aparisi, who appeared before many times at the Arlington Immigration Court.
All this being said, the Supremes still mightpreserve this couple’s future and save the Garland DOJ from themselves. In past cases, faced with clear statutory language, the Supremes have required the Government to do something radically sensible:follow the law!See, e.g., Pereira v. Sessions, 138 S.Ct. 2105 (2018) (notice to appear).
So, who knows? Justice (not to be confused with the Department of “Justice”) as well as common sense and human decency could again prevail!
