Category: Article I Court

⚖️EOIR GUIDANCE ON ADMINISTRATIVE CLOSING — GOOD, BUT COULD HAVE BETTER! —Why Is A Non-Judge Director (“Senior Court Administrator”) Issuing Non-Binding “Guidance” That Should Have Been In BIA Precedents?

UY

https://www.justice.gov/eoir/book/file/1450351/download

PURPOSE:

OOD DM 22-03

Issued: Nov. 22, 2021 Effective: Immediately

ADMINISTRATIVE CLOSURE

Provide guidance to adjudicators on administrative closure in light of Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

David L. Neal, Director 8 C.F.R. § 1003.0(b)

On July 15, 2021, the Attorney General issued a precedential decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that decision, the Attorney General restored the authority of immigration judges and the Board of Immigration Appeals (Board) to administratively close cases. This memorandum discusses the practical implications of the Attorney General’s decision, particularly in light of the Executive Office for Immigration Review’s (EOIR) pending caseload.

II. Administrative Closure to Date

Administrative closure “is a docket management tool that is used to temporarily pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017). An immigration judge’s or appellate immigration judge’s administrative closure of a case “temporarily remove[s] [the] case from [the] Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Administrative closure came into widespread use by EOIR adjudicators in the 1980s. Cases have been administratively closed for a variety of reasons over the years, and the Board has issued several decisions addressing when administrative closure is appropriate. The Board’s two most recent such decisions are Matter of Avetisyan and Matter of W-Y-U-, issued in 2012 and 2017, respectively.

In 2018, Attorney General Sessions issued Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He held that, with limited exceptions, “immigration judges and the Board do not have the general authority” to administratively close cases. Matter of Castro-Tum, 27 I&N Dec. at 272. The Third, Fourth, Sixth, and Seventh Circuits subsequently ruled on challenges to Matter of Castro- Tum. A circuit split emerged, with the Third, Fourth, and Seventh Circuits holding that

OWNER:

AUTHORITY: CANCELLATION: None

I. Introduction

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adjudicators have the general authority to administratively close cases,1 but with the Sixth Circuit holding that adjudicators have the authority to administratively close cases only in limited circumstances.2 In 2020, the Department of Justice (Department) promulgated a final rule that essentially codified Matter of Castro-Tum, restricting EOIR adjudicators’ ability to administratively close cases. See “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85 Fed. Reg. 81588 (Dec. 16, 2020). However, this rule has been preliminarily enjoined nationwide. See Centro Legal de La Raza v. Exec. Office for Immigration Review, 524 F.Supp.3d 919 (N.D. Cal. Mar. 10, 2021).

In Matter of Cruz-Valdez, the Attorney General noted that Matter of Castro-Tum “departed from long-standing practice” by prohibiting administrative closure in the vast majority of circumstances. Matter of Cruz-Valdez, 28 I&N Dec. at 329. He also noted that the Department is “engaged in a reconsideration” of the enjoined 2020 rule. Id. Given these factors, the Attorney General, in Matter of Cruz-Valdez, “overrule[d] [Matter of Castro-Tum] in its entirety,” and he “restore[d] administrative closure” pending the current rulemaking. Id. He specified that, in deciding whether to administratively close cases pending the rulemaking, “except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” Id.

III. Administrative Closure after Matter of Cruz-Valdez

With administrative closure restored, EOIR adjudicators have the authority, under the Board’s case law, to administratively close a wide variety of cases. Going forward, pending the promulgation of a regulation addressing administrative closure, adjudicators must evaluate requests to administratively close cases under Matter of Avetisyan and Matter of W-Y-U-, as well under as the Board’s case law predating those decisions, to the extent that case law is consistent with those decisions. Adjudicators should accordingly familiarize themselves with Matter of Avetisyan, Matter of W-Y-U-, and the Board’s prior case law addressing administrative closure.

The restoration of administrative closure will assist EOIR adjudicators in managing their dockets given EOIR’s caseload. In Matter of Cruz-Valdez, the Attorney General recognized that administrative closure has in the past “served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.” Matter of Cruz-Valdez, 28 I&N Dec. at 327. EOIR has finite resources and a daunting caseload. Given this reality, it is important that adjudicators focus on two categories of cases: those in which the Department of Homeland Security (DHS) deems the respondent to be an immigration enforcement priority,3 and those in which the respondent

1 See Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 121-24 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019).

2 Specifically, the Sixth Circuit initially held that the regulations do not delegate to immigration judges or the Board the general authority to administratively close cases. Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020) . But the Sixth Circuit later held that the regulations provide adjudicators “the authority for administrative closure” to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. Garcia-DeLeon v. Garland, 999 F.3d 986, 991 (6th Cir. 2021).

3 Effective November 29, 2021, DHS’s immigration enforcement priorities are noncitizens DHS deems to pose risks to national security, public safety, and border security. See Memorandum from Alejandro N. Mayorkas, Secretary,

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desires a full adjudication of his or her claim or claims. Being able to administratively close low priority cases will help adjudicators do this.

Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties’ “agreement on an issue or proper course of action should, in most instances, be determinative”); Matter of Cruz-Valdez, 28 I&N Dec. at 327 (recognizing the role of administrative closure in “facilitat[ing] the exercise of prosecutorial discretion”).

Administrative closure is appropriate in many other situations as well. For example, it can be appropriate to administratively close a case to allow a respondent to file an application or petition with an agency other than EOIR. See Matter of Avetisyan, 25 I&N Dec. at 696 (identifying “the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings” as a factor for adjudicators “to weigh” in evaluating requests for administrative closure); 8 C.F.R. § 212.7(e)(4)(iii) (permitting a respondent in removal proceedings to file a Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services where the “proceedings are administratively closed and have not yet been recalendared at the time of filing the application”). It can also be appropriate to administratively close a case while an agency adjudicates a previously filed application or petition, or, if a visa petition has been approved, while waiting for the visa to become available. See Matter of Avetisyan, 25 I&N Dec. at 696. It is generally appropriate to administratively close a case where a respondent has been granted temporary protected status. See Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). This is only a partial list; administrative closure can be appropriate in other situations not mentioned here. See Matter of Avetisyan, 25 I&N Dec. at 696 (stating that each request for administrative closure “must be evaluated under the totality of the circumstances of the particular case”).

Where a respondent requests administrative closure, whether in a scenario described above or another scenario where administrative closure is appropriate, and DHS does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. at 1026. Where a request for administrative closure is opposed, “the primary consideration . . . is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Matter of W-Y-U-, 27 I&N Dec. at 20. But adjudicators should bear in mind that “neither party has ‘absolute veto power over administrative closure requests.’” Id. at n. 5 (quoting Matter of Avetisyan, 25 I&N Dec. at 692).

Where at all possible, issues involving administrative closure should be resolved in advance of individual calendar hearings and not at hearings. Immigration judges are therefore encouraged to send scheduling orders to parties well before the hearing takes place, inquiring of DHS whether the respondent is an immigration enforcement priority, and otherwise soliciting the parties’ positions on administrative closure and other issues related to prosecutorial discretion. Where

Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

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such issues have not been resolved in advance of an individual calendar hearing, the immigration judge should ask DHS counsel on the record at the beginning of the hearing whether the respondent is an immigration enforcement priority. Where DHS counsel responds that the respondent is not a priority, the immigration judge should further ask whether DHS intends to exercise some form of prosecutorial discretion in the case. As part of this colloquy, the 4 immigration judge should ask whether the parties want the case administratively closed.

IV. Conclusion

Administrative closure is a longstanding, and valuable, tool for EOIR adjudicators. As the Attorney General noted in Matter of Cruz-Valdez, the Department is currently engaged in rulemaking that will address adjudicators’ authority to administratively close cases. Pending that rulemaking, adjudicators have the authority under Matter of Cruz-Valdez to administratively close many cases before them when warranted under Board case law. Adjudicators should familiarize themselves with the situations in which administrative closure is appropriate, and adjudicators should be proactive in inquiring whether parties wish for cases to be 5 administratively closed. If you have any questions, please contact your supervisor.

4 There is one potential caveat to the guidance and instructions in this section. As noted above, the Attorney General stated that, pending the promulgation of a regulation addressing administrative closure, immigration judges and the Board should apply the Board’s case law “except when a court of appeals has held otherwise.” Matter of Cruz- Valdez, 28 I&N Dec. at 329. For cases arising in the Sixth Circuit, adjudicators must determine to what extent administrative closure is permitted given that court’s case law, and they must handle issues involving administrative closure accordingly. See Garcia-DeLeon, 999 F.3d 986; Hernandez-Serrano, 981 F.3d 459.

5 This memorandum does not create any legal rights or benefits for either party, and it does not mandate that a particular motion for administrative closure be granted or denied. In all cases, immigration judges and appellate immigration judges must exercise their independent judgment and discretion in adjudicating motions for administrative closure consistent with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).

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WHAT SHOULD HAVE HAPPENED: Garland should have appointed the “Chen-Markowitz BIA” and empowered them to aggressively clean up the backlog, using administrative closing among others tools (such as referral to USCIS and more favorable precedents requiring the granting of relief in meritorious cases).

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

In a properly functioning quasi-judicial system, this same “guidance” should have come in a series of BIA precedents that would require BIA panels and the Article IIIs to enforce compliance among recalcitrant Immigration Judges. That could be accompanied by unilateral action by the BIA to close “deadwood” cases on the appellate docket. Either party could request re-docketing, with a justification. (Hint: In my BIA career, we closed thousands of cases of this way and I could count on one hand the number of “redocketing” motions we received.) Also, in a better system, the Immigration Judges already would be aggressively taking these “common sense” steps.  Precedents properly applying asylum, withholding, and CAT would be cutting into the largely “manufactured” backlog.

WHAT ACTUALLY HAPPENED: Typical Dem timid approach.

Unless the BIA actually believes in this “guidance” (doubtful, given it’s current “packing” with notorious anti-immigrant judges by Sessions and Barr, unaddressed by Garland) and is willing to enforce it and incorporate it into precedents, it won’t achieve its objective of promoting fairness and efficiency! Nor will it significantly reduce the backlog. 

Perhaps the “rulemaking” referenced in Director Neal’s memo will solve the problem. But, EOIR’s history of completing such rulemaking, particularly in Dem Administrations, has been less than stellar. See, e.g., Gender-Based Asylum Regs (3 Dem Administrations, 0 Regs); Ineffective Assistance of Counsel Regs (2 Dem Administrations, 0 Regs). 

One problem: Dem Administrations often feel compelled to engage in false “dialogue,” look for an unachievable “consensus,” and pay attention to public comments; GOP Administrations simply plow ahead with their preconceived agenda without regard to expert input, public opinion, or empirical data. 

Consequently, although Dems have failed over more than two decades to finalize final gender-based asylum regulations, Stephen Miller was able to publish outrageous final regulations eliminating more than two decades of gender-based case law progress in a few months. Fortunately, those regs were promptly enjoined!

Over the past two decades, the GOP has radically “weaponized” EOIR as an enforcement tool. Dems have pretended not to notice and have squandered at least nine years of basically “unrestricted” opportunities to restore some semblance of due process, sanity, and humanity @ EOIR! As my friend Karen Musalo said in her recent LA Times op-ed, “actions speak louder than words.” 

EOIR’s latest “actions,” while better than nothing, are unnecessarily ineffective.This is supposed to be a “court system,” not a bureaucratic “agency,” run by “policy directives” and a top-heavy, bloated bureaucracy with fancy-titled “supervisors” and superfluous “program managers.”

Until we get an Attorney General who considers migrants to be persons (humans), views immigrant justice as important, understands what a court is, how it operates, and has the guts to install the practical progressive experts who can make it happen, EOIR will continue to be an embarrassment to American justice.

🇺🇸Due Process Forever!

PWS

11-27-21

Related posts:

  1. COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –  SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”
  2. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  3. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  4. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!

😎🗽⚖️ OF COURSE, GREAT LAWYERING MAKES A DIFFERENCE IN IMMIGRATION COURT! — Only Nativists & Former Director McHenry Would Bogusly Claim Otherwise! — Another “Real Life Success Story” From Professors Benitez & Vera @ The GW Law Immigration Clinic! — Garland’s DOJ “Goes Molasses In November” On Improving Access To Counsel & Elevating The “Pro Bono Experience!”

 

Please thank them all on my behalf. I’m extremely grateful for what each of them did on my case.” This is what our client, E-K- said upon receiving well wishes from several of his former student-attorneys after he was sworn in as a U.S. citizen yesterday. Please see the attached photo of E-K- with Prof. Vera after his oath ceremony. E-K- authorized our use of his picture. 

E-K- became a Clinic client in 2009 after an unsuccessful interview at the Arlington Asylum Office. In February 2010, E-K-, a native of Cameroon, had his first Individual Calendar Hearing based on his political opinion and imputed political opinion following his involvement in a sit-in and his presence during a protest. DHS appealed the initial grant of asylum and on remand the Board of Immigration Appeals instructed the Immigration Judge to pay attention to credibility. However, the Immigration Clinic and E-K- prevailed again in 2013 and the asylum grant was finalized! The Clinic then assisted E-K- with his green card application, naturalization application, and naturalization interview. Next up: his wife’s green card application!

Please join me in congratulating Alexa Glock, Anca Grigore, Rebekah Niblock, Victoria Braga, Alex North, Jonathan Bialosky, and Paulina Vera, who all worked on the case.

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Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

(202) 994-7463

(202) 994-4946 fax             

abenitez@law.gwu.edu

THE WORLD IS YOURS…

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Real life success stories from real life humans represented by well-trained law students in a “Surreal Immigration Court System!”

Brings to mind the disgraceful incident when former Trump-Era EOIR Director James McHenry created a bogus “Fact Sheet” with a ludicrous narrative in a dishonest attempt to show that lawyers and knowing individual rights in Immigration Court were irrelevant to success.

McHenry’s lies, myths, and intentional distortions were universally panned by immigration experts as reported by Courtside at the time.

https://immigrationcourtside.com/2019/05/16/the-asylumist-weighs-in-on-eoirs-fact-sheet-sometimes-myths-and-facts-get-mixed-up-especially-in-the-trump-administration-which-has-redacted-human-rights-report/

https://www.naij-usa.org/images/uploads/newsroom/

https://immigrationcourtside.com/2019/05/16/truth-matters-setting-the-record-straight-aila-blasts-eoirs-false-unethical-anti-asylum-screed-together-the-documents-deceptive-information-and-polarizing-r/

Under Judge Garland, the DOJ claims to recognize and promote representation in Immigration Court. But, leaving aside the mushy rhetoric, their actions say otherwise:

    • “Dedicated Dockets” and sloppy mail-out notices established without consultation with the private bar;
    • Proposed asylum regulations almost universally opposed by the private bar;
    • Failure to slash the overwhelming, due process inhibiting, 1.5 million case backlog;  
    • Continued “Aimless Docket Reshuffling” fueled by changing and misplaced administrative “priorities”that totally ignore the needs of the pro bono bar; 
    • Continuing support for “imbedded Immigration Courts and TV Courts” established in or near DHS Detention Centers located in obscure places where attorneys are not easily obtainable;
    • Overly restrictive and widely inconsistent bond determinations in Immigration Court that inhibit effective representation;
    • Ridiculous backlog of Recognition and Accreditation applications that impedes new opportunities for well-qualified pro bono representatives in Immigration Court (See, e.g., VIISTA Program, Villanova Law); 
    • Failure to “swap out” a legally substandardly performing BIA and some Immigration Judges for “real, well-qualified Judges with immigration and due process expertise;” 
    • Long-delayed e-filing, making pro bono representation more difficult  and less efficient; 
    • Overall lack of dynamic court management and appropriate professional dialogue with the private bar;
    • Substandard EOIR “judicial training” that puts undue burden on private attorneys, particularly those operating  pro bono;
    • Lack of positive precedents, particularly on asylum, that would help parties and judges move many “grantable” asylum cases through Immigration Courts fairly, efficiently, and consistently with due process and “best practices;”
    • Continuing lawless use of Title 42 @ Southern Border causing diversion of legal resources that could otherwise be channeled into representation!

In other words, the DOJ under Garland has failed to deliver on the promise of restoring the rule of law and promoting representation in Immigration Court. Seems like nothing short of Article I will “get the job done!”

It’s painfully obvious that the politicos running the dysfunctional Immigration Courts @ DOJ have never actually had to practice before them, particularly pro bono! So, they just go on repeating many of the uninformed mistakes of their predecessors!

🇺🇸Due Process Forever!

PWS

11-19-21

 

Related posts:

  1. ⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!
  2. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  3. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!
  4. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”

🏴‍☠️👎🏽MORE REBUKES FOR GARLAND’S INEPT BIA, ASHCROFT: 1st Cir. Questions Ashcroft’s Matter Of Y-L-, 23 I&N Dec. 370 (AG 2002) Even As OIL Disavows BIA’s (Non) Analysis — 11th Slams BIA’s Unreasonable Rejection Of Future Persecution, Withholding, CAT For Sri Lankan!

 

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

From Dan Kowalski @ LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-puts-a-dent-in-matter-of-y-l–decarvalho-v-garland#

CA1 Puts a Dent in Matter of Y-L-: DeCarvalho v. Garland

DeCarvalho v. Garland

“The Board of Immigration Appeals (BIA) held that Janito DeCarvalho’s conviction for possession of oxycodone with intent to distribute in violation of Mass. Gen. Laws ch. 94C, § 32A(a), constitutes a “particularly serious crime” that makes him ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA also denied DeCarvalho’s application for deferral of removal under the Convention Against Torture (CAT). DeCarvalho petitions for review of the BIA’s decisions, principally arguing that the Attorney General’s decision in Matter of Y-L- unlawfully presumes that all aggravated felonies involving trafficking in controlled substances are particularly serious crimes. See 23 I. & N. Dec. 270, 274–75 (U.S. Att’y Gen. 2002). We deny his petition for review insofar as he seeks CAT relief. We grant the petition in part, however, because the immigration judge (IJ) informed DeCarvalho, who was proceeding pro se, that he was eligible for potential relief only under the CAT. In so doing, the IJ treated DeCarvalho’s conviction for drug trafficking as if it were a per se bar to withholding of removal, a position that the government now disavows on appeal. We remand to the agency with instructions to give DeCarvalho a new hearing to determine whether he is entitled to withholding of removal.”

[Hats off to Trina Realmuto, Tiffany Lieu, and Jennifer Klein!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca11-on-future-persecution-cat-jathursan-v-atty-gen#

CA11 on Future Persecution, CAT: Jathursan v. Atty. Gen.

Jathursan v. Atty. Gen.

“Pathmanathan Jathursan, a native and citizen of Sri Lanka, seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the immigration judge’s denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). The BIA found no clear error in the immigration judge’s findings that Jathursan failed to establish (1) past persecution on account of a protected ground, (2) a well-founded fear of future persecution on account of a protected ground, or (3) that he would more likely than not be tortured in the event he returned to Sri Lanka. Following oral argument, we grant Jathursan’s petition for review in part, vacate the BIA’s order in part, and remand to the BIA for further consideration of his asylum and withholding-of-removal claims based on his fear of future persecution as a Tamil failed asylum seeker. We also vacate and remand on the BIA’s denial of relief under CAT.”

[Hats off to Visuvanathan Rudrakumaran!]

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What’s the “worst of all worlds?” Let’s try a ”holdover BIA” still channeling Trump/Miller biased nativist restrictionism combined with a Dem AG with infinite tolerance for substandard judging, an anti-immigrant culture, and bad decision making that disproportionately adversely affects people of color! 😎 Add that to an out of control, largely self-created, jaw-dropping 1.5 million case backlog and you get a formula for national disaster! 

These “TRAC Lowlights” show a totally unacceptable and inept performance by the DOJ and Judge Garland that should have every American who believes in due process, equal justice, and “good government” outraged and demanding a change at DOJ! https://trac.syr.edu/immigration/quickfacts/?category=eoir

Highlights from data updated today on immigrants facing deportation in court include the following:

  • Immigration Courts recorded receiving 49,817 new cases so far in FY 2022 as of October 2021. This compares with 21,154 cases that the court completed during this period.
  • According to court records, only 0.68% of FY 2022 new cases sought deportation orders based on any alleged criminal activity of the immigrant, apart from possible illegal entry.
  • At the end of October 2021, 1,486,495 active cases were pending before the Immigration Court.
  • Los Angeles County, CA, has the most residents with pending Immigration Court deportation cases (as of the end of October 2021).
  • So far this fiscal year (through October 2021), immigration judges have issued removal and voluntary departure orders in 24.7% of completed cases, totaling 5,232 deportation orders.
  • So far in FY 2022 (through October 2021), immigrants from Guatemala top list of nationalities with the largest number ordered deported.
  • Only 20.7% of immigrants, including unaccompanied children, had an attorney to assist them in Immigration Court cases when a removal order was issued.
  • Immigration judges have held 2,011 bond hearings so far in FY 2022 (through October 2021). Of these 714 were granted bond.

You don’t have to be a Rhodes Scholar to see how an undisciplined system run by clueless politicos and bureaucrats (rather than judges and experts) that takes in more cases than it can decide, picks on unrepresented individuals, deports large numbers of Guatemalans to a country that is clearly in crisis, and grants bond to only 1/3 of the custody cases even with a minuscule percentage of so-called “criminal immigrants” in proceedings is failing, miserably, every day.

What’s even worse, is that there is NO credible plan to fix this! NONE! Throwing more bodies into the maelstrom, poorly thought out proposed asylum regulations, dedicated dockets, and misuse of Title 42 to block proper access to those seeking asylum and other forms of  legal protection won’t do the trick. No qualified expert would propose any of the foregoing as the solution to fairly and legally reducing backlogs. That tells us all we need to. know about the qualifications of the folks “pulling the strings” on immigration in the Biden Administration.

The message: The GOP hates immigrants, and the Dems disrespect them!

We’ll see whether the Biden Administration’s contemptuous treatment of immigrants, their families, communities, and supporters, particularly their failure to “clean up, clean out, and reform” their wholly owned “courts” at EOIR, proves to be a great political strategy. Frankly, I can’t see how dumping on a key group of supporters from the last successful election proves to be a “winner” in 2022 or 2024!

The extraordinary quality of the work done by the NDPA all-stars 🌟highlighted above by Dan speaks for itself, as does the unacceptably poor quality of the legal work done by EOIR and a BIA that is bogusly presenting itself as “experts.” Obviously, as has been clear from the beginning of the Biden Administration, the wrong people are on the BIA and Team Garland has disgracefully failed to do the serious and gutsy “recruitment and replacement” necessary to fix this dysfunctional EOIR system and save lives!

Miller Lite
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color

The absolute disaster for our legal system and the reprehensible result of Garland & Co’s failure to “pull the plug” on the “Miller Lite BIA” and to make wholesale merit-based positive changes in the recruitment, selection, and composition of the Immigration Judiciary will go down as a legacy that not only will reflect ill on Garland and his lieutenants, but will also be a major factor promoting the failure of American democracy.

You can tell a lot about the values of a society by the way it treats the most vulnerable among it. Right now, sadly, that’s “nothing to write home about!”🤮

🇺🇸Due Process Forever!

PWS

11-18-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. 🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship!  — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

😎🗽ASYLUM GRANT RATES REBOUND MODESTLY UNDER BIDEN AFTER FOUR YEARS OF SYSTEMIC ARTIFICIAL WHITE NATIONALIST REPRESSION UNDER TRUMP, EVEN AS NUMBER OF ASYLUM DECISIONS RECEDES — Grant Rates Still Lag Far Behind FY 2012 When Well Over 50% Were Granted, Showing Inexcusable “Lost Decade” In EOIR’s Asylum Adjudications & Proper Legal Development Of Asylum Law! 

 

Transactional Records Access Clearinghouse

Asylum Grant Rates Climb Under Biden

Under the new Biden administration, asylum seekers are seeing greater success rates in securing asylum. While relief grant rates had fallen ever lower during the Trump years to just 29 percent in FY 2020, they rose to 37 percent in FY 2021 under President Biden.

However, with the ongoing partial Court shutdown during the COVID-19 pandemic, there has been a sustained drop in the number of asylum decisions. Even with the greater odds of success, the number of asylum seekers who were granted asylum during FY 2021 was only 8,349 with an additional 402 granted another type of relief in place of asylum. In sheer numbers, this was only about half the number of asylum seekers who had been granted relief during FY 2020, the final year of the Trump administration.

The improved asylum grant rates during FY 2021 began only after the new Biden administration took office at the end of January 2021. Tracking asylum grant rates month-by-month rather than year-by-year, the increase in asylum grant rates under President Biden for the last quarter of FY 2021 (July-September 2021) was even larger: asylum seekers’ success rates climbed to 49 percent. Not only was this much higher than at any period during the Trump years, the asylum success rate was up five percentage points from 44 percent during the last quarter of the Obama administration.

Historically, asylum seekers have had greater success in the Immigration Court for affirmative as compared with defensive asylum cases. At one time, the majority of asylum applications decided by Immigration Judges were affirmative cases referred by U.S. Citizenship and Immigration Services (USCIS). However, most asylum applications today are considered defensive applications and filed in response to the Department of Homeland Security initiating removal proceedings in Immigration Court.

Asylum seekers who are represented by an attorney – as most are in affirmative asylum cases – have greatly increased odds of winning asylum or other forms of relief from deportation. For all Court decisions in FY 2021, nearly nine out of ten (89%) asylum seekers in affirmative and defensive cases were represented. This was clearly a vital factor in improving overall asylum success rates since in the prior year, FY 2020, representation rates were 80 percent or nine (9) percentage points lower.

Read the full report – the first in a two-part series – to obtain many more details about trends in Immigration Court asylum decisions over the past two decades at:

https://trac.syr.edu/immigration/reports/667

The impact of gender, age, language, and nationality will be covered in the second report in this two-part series. Readers need not wait to probe these and many more details on asylum decisions using TRAC’s free web query tool — now updated through September 2021 and expanded to cover gender, age, and language details. As before users can also drill in to see how decisions vary geographically, by state, Immigration Court, and hearing location. Go to:

https://trac.syr.edu/phptools/immigration/asylum/

To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through September 2021, use TRAC’s Immigration Court tools here:

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

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

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

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

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

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

David Burnham and Susan B. Long, co-directors 

Transactional Records Access Clearinghouse 

Syracuse University 

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315-443-3563 

trac@syr.edu 

https://trac.syr.edu 

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

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Here’s some historical perspective. When the Refugee Act of 1980 was enacted, the INS took the position that the standard of proof for asylum was the same as the “traditional” standard for the pre-existing relief of withholding of deportation. That was a “clear probability,” of persecution, which means “more likely than not.”

Because this was a high standard that had been “over-rigorously applied” to deny almost all withholding cases (refugees from communism — Other Than Chinese — were about the only folks who had any chance of being granted withholding, and that was rare) the asylum grant rate remained very low for the first six years following enactment of the Refugee Act. In 1987, that grant rate was only approximately 11%.

In 1987, the Supreme Court decided INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). (As the Acting General Counsel/Deputy General Counsel of INS, I had helped the Solicitor General prepare and articulate the Government’s position. My future Immigration Court friend and colleague, Judge Dana Leigh Marks, then known as Dana Marks Keener, argued for Ms. Cardoza-Fonseca. I sat at counsel’s table with the “SG’s Team” during the oral argument before the Court. Shortly thereafter, I left INS to go into private practice at Jones Day.)

To the surprise of many of us, the Supremes soundly rejected the INS position and ruled in favor of Ms. Cardoza-Fonseca. The Court said that a “well-founded fear” of persecution was intended to be a much more generous standard, significantly less than a probability and including a “10% chance” of persecution.

Thereafter, the BIA issued a precedent implementing the “well founded fear” standard as “significantly less than a probability” — an “objectively reasonable” fear of persecution — in Matter of Mogharrabi, 19 I&N Dec. 437 (BIA 1987). Mogharrabi also stood out as one of the very few BIA precedents up to that time actually granting, rather than denying asylum on appeal. (When I returned to Government service in 1995 as Chairman of the BIA, I was a “true believer” in making the as yet “unfulfilled promise of Cardoza and Mogharrabi” a reality! That’s still at the top of my “Due Process Forever Wish List!”)

In the immediate aftermath, while “parroting” the Cardoza and Mogharrabi generous standards, most Immigration Judges and BIA panels appeared to actually continue to apply the more restrictive “probability” or “more likely than not” standard.  But, over time, the Circuit Courts of Appeals and sometimes even Board Members (most often in dissent) began “calling out” EOIR Judges for what appeared to be an intentional misapplication of the asylum standard.

A regulation change to provide a “rebuttable presumption of future persecution” arising out of past persecution also helped. That is, once the Article III Courts forced EOIR judges to actually apply, rather than ignore or disingenuously “work around,” the regulatory presumption. See generally, Matter of Chen, 20 I&N Dec. 16 (BIA 1989) (particularly the concurring opinion by Judge Michael J. Heilman) for the “Bush I Era” historical impetus for the past persecution regulations. Ironically, the BIA sometimes had trouble “following up” on the generous teachings of their own Chen precedent.

Additionally, Judge Marks and other trained asylum experts from outside the Government who joined the Immigration Court prior to 2001 began actually applying the correct standard to grant asylum. (By stark contrast, Sessions and Barr “stacked and packed” the BIA with some of the most virulent anti-asylum judges in America while appointing far too many individuals with no immigration or asylum expertise whatsoever to be Immigration Judges at the trial level. The idea was to “build the deportation railroad” 🚂 with the BIA and Immigration Court as “mere whistle stops,” at best.)

Consequently, over time, between 1987 and 2013, there was a slow but steady increase in asylum grant rates as Courts and some Immigration Judges and BIA Members pushed EOIR to finally “live up” to the more generous Cardoza/Mogharrabi standard. A number of those who helped this push for justice for asylum seekers are now members of our “Round Table of Former Immigration Judges!”🛡⚔️

Knightess
Knightess of the Round Table

The world certainly was a dangerous place for refugees in the years leading up to FY 2012, when asylum grants actually reached their “high water mark” of well over 50%. But, it has gotten even more dangerous over the past decade. 

That, until recently, asylum grant rates had steadily declined since FY 2012 while conditions for refugees continued to worsen shows that the EOIR system is largely about politically driven enforcement manipulation rather than a test of reality or a fair, efficient, competent, and legally sound approach to asylum law.

The modest but welcome rise in asylum approval rates under Biden happened notwithstanding a BIA that continues to churn out unduly and intentionally restrictive precedents and to botch basic asylum decisions on a regular basis! It also occurred under an Attorney General who has largely “looked the other way” and exhibited indifference as the BIA (composed mostly of “holdover” Trump-era appointees or “survivors” of the Trump regime) continues to abuse asylum seekers.

Lawyers and applicants who have kept fighting for their rights in a system designed to railroad and demoralize them deserve much credit for the improved results and for constantly battling to expose the “Garland BIA’s” gross deficiencies to the Article III Circuit Courts. That’s what the “New Due Process Army” is all about!

Just think what the asylum grant rate might look like with a better BIA of independent expert judges who consistently provided positive precedents and guidance on asylum law and consistently enforced them against those Immigration Judges who have improperly and unethically created “Asylum Free Zones” in some jurisdictions!

Think of how many lives could be saved with better judges at the trial, and particularly the appellate, levels of EOIR! Backlogs and unnecessary litigation would also begin to decrease — without bogus and wasteful “enforcement gimmicks” like Garland’s “Dedicated Dockets” designed and implemented from above by disconnected, sometimes clueless, bureaucrats as a toxic example of  backlog-building “Aimless Docket Reshuffling!”

Not rocket science! 🚀 Too bad nobody at Garland’s DOJ appears to care much about human lives and taxpayer dollars going down the drain on an unfair, backlogged, and stunningly dysfunctional asylum system at EOIR and on the Southern Border. ☹️

🇺🇸Due Process Forever!

PWS

11-10-21

Related posts:

  1. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!
  2. DUH OF DA DAY: White Nationalist Agenda, Anti-Asylum Gimmicks, Grotesque Mal-Administration Leads To Longer Waiting Times @ Disastrously Dysfunctional EOIR 🤮 — Biden-Harris Administration Must End America’s Disgraceful Star Chambers ⚰️!
  3. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  4. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

🤮👎PROPER CAT ANALYSIS A VICTIM OF GARLAND’S “ANY REASON TO DENY” BIA — Arulnanthy v. Garland, 5th Cir.

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60760-CV0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-jurisdiction-cat-arulnanthy-v-garland#

“The collateral consequences of the BIA’s order ensure that Arulnanthy’s petition for review remains justiciable despite his removal to Sri Lanka. Substantial evidence supports the finding that Arulnanthy was not a credible witness. And the BIA was right to consider Arulnanthy’s lack of credibility fatal to his asylum claim. But the BIA’s refusal to consider his country-conditions evidence in the purely objective CAT context was error. We therefore REMAND the petition as to the CAT claim and DENY it in all other respects.”

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This isn’t “rocket science” and the 5th Circuit is hardly known as a hotbed of due process and fundamental fairness for migrants! 

But, when the BIA starts with “the migrant loses” as the “bottom line,” and then reasons backwards (if they bother reasoning at all, in their usual haste to keep the “deportation assembly line” moving) the “analysis” is likely to be defective. This 5th Circuit panel actually took their job of analyzing the record before them more seriously than Garland “faux expert” BIA!

One would think that a former Court of Appeals Judge would take due process, impartiality, and quality control seriously in his “wholly owned and operated ‘court’ system.” But, that would be someone other than Judge Garland! 

🇺🇸Due Process Forever! Xenophobia, Never!

PWS

11-09-21

 

Related posts:

  1. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ☠️🤮 “TEFLON MERRICK” — GROTESQUE DUE PROCESS MELTDOWN @ GARLAND’S EOIR CONTINUES UNABATED, WHILE AG AVOIDS ACCOUNTABILITY — 3RD CIR. CASTIGATES GARLAND’S BIASED & INCOMPETENT “STAR CHAMBERS” — “It is more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”
  4. ⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!

⚠️BIA’S GRUDGING ACCEPTANCE OF SUPREMES’ RULING ON “STOP TIME RULE” MASKS ATROCIOUS ANTI-ASYLUM PRECEDENT TARGETING INDIGENOUS REFUGEES! — Garland Ignores Bad Law, Anti-Immigrant Precedents Flowing From His Court!”🤮 — Matter of M-F-O-, 28 I&N Dec. 428 (BIA 2021)

https://www.justice.gov/eoir/page/file/1446396/download

“Floaters”
Garland, Mayorkas, and other Biden honchos appear unable to get beyond this “Stephen Miller vision” for legal asylum seekers. “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

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

“Inside Baseball”⚾️  — The human, administrative, and taxpayer costs of the BIA’s unwillingness to uphold the statute in the face of DHS and EOIR “Management” intransigence — and their disregard for clear warning signals from the Supremes — are unfathionable to anyone outside this totally dysfunctional and out of control system! See, e.g., https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-stop-time-rule-quebrado-cantor-v-garland.

Could there be any clearer example of the need to take this mess out of the DOJ and create a competent, expert, independent Article I Immigration Court with real judges?

The asylum/withholding portion of this decision appears to be an atrocious misconstruction and intentional misapplication of asylum law by the BIA!

In fewer than five minutes of “internet research,” I found three authoritative pieces of evidence that should have been sufficient to show an endemic, ongoing racial and psg persecution of Indigenous Guatemalans and a total failure of state protection. See, e.g., https://www.govinfo.gov/content/pkg/USCOURTS-ca6-18-03500/pdf/USCOURTS-ca6-18-03500-0.pdf;  https://monthlyreview.org/2020/09/01/a-violent-guatemala/; https://minorityrights.org/trends2018/guatemala/.

This, in turn, should long ago have been adequate for a BIA of better-qualified appellate judges who have asylum expertise and are willing to to stand up for the legal rights of asylum seekers to issue a precedent finding a “pattern or practice” of such persecution in Guatemala. See, e.g., 8 C.F.R. § 1208.13(b)(2)(iii)(A). 

With such a precedent, cases like this could be expeditiously granted at the Asylum Office or in focused Immigration Court hearings, instead of “kicking around the system” for more than three years and then being wrongly decided at both the trial and appellate levels. Wonder why our immigration system is a mess? Look no further than Garland’s anti-immigrant EOIR!

The panel’s conclusion that indigenous status wasn’t even “a reason” for gang persecution is preposterous — proof of institutional bias against asylum seekers, particularly those from the Northern Triangle!

The improperly and intentionally skewed asylum denial rates at our Southern Border feed the nativist fiction that asylum seekers are illegally seeking entry into the US. In reality, they appear to be victims of systemic racial, ethnic, and xenophobic bias fueled by both DHS and DOJ even under this Administration. 

We currently have no functioning legal asylum system at ports of entry, nor have we had one for several years. “Gimmicks” like “Remain in Mexico” and “Title 42” have illegally replaced our legal protection system. 

Why WOULDN’T folks seek refuge through irregular entry in such an insane situation? Who in their right mind wouldn’t? 

This system further generates bogus “apprehension” numbers used by DHS, DOJ, and politicos of both parties to generate false panic about the arrival of persons seeking legal status that we have unlawfully suspended! 

Many of these individuals deserve to be legally admitted and allowed to contribute to our society! Instead, they are demonized, demeaned, dehumanized, and otherwise mistreated by our Government.

Indeed, GOP politico-restrictionist-alarmists are already trying to inflame public opinion by raising the manufactured “specter” that a slow moving so-called “caravan” of unarmed, desperate, and vulnerable migrants seeking to apply for legal refuge from some of the most repressive and dangerous countries in the world are an existential threat to the security of what is supposed to be the most powerful nation on earth! Letter asking BIden to enforce laws at brder 11.4.21 What poppycock! 

They mischaracterize the group as having “nonexistent asylum claims.” But, how would they or anyone else know, since we currently have no system to fairly adjudicate such claims and no reliable information about the individual circumstances on which they are based? 

Instead of engaging in racially charged panic and lawless enforcement, why not just direct them to report to legal ports of entry where they could be properly screened by trained Asylum Officers in a prompt and fair manner? 400 well-trained Asylum Officers doing two cases per day could complete the screening in a matter of days or several weeks at most! 

Those who pass credible fear could be referred to Immigration Court in cooperation with legal aid and NGO groups to help them prepare and insure appearance. Represented asylum seekers appear for Immigration Court at a rate approaching 100%! Why wouldn’t an Administration truly interested in a fair and orderly asylum system concentrate on increasing representation  rather than imposing more “guaranteed to fail” enforcement-only gimmicks?

Those who do not pass credible fear could be returned, provided that can be done in a safe and humane manner, perhaps working with the UNHCR and other international aid organizations to insure safe and orderly acceptance in the home nations.

And, unlike the current lawless system, we would actually have some empirical information about the claims of those applying at the border. It seems likely that under a fair and legal application asylum law, many would have valid asylum claims. But, without a fair hearing system and more Immigration Judges and BIA judges who are experts in asylum law and will fairly apply it, who knows? Right now, everyone is just “guessing” about the potential merits the claims because we don’t now have, and haven’t for some years had, a fair system for deciding those individual cases!

Here’s a still-timely article from Professor Bill Hing (ImmigrationProf Blog) about how we are repeating our past mistakes of mistreating Central American asylum seekers. https://repository.uchastings.edu/hastings_race_poverty_law_journal/vol17/iss2/5/

The same is true of Haitians seeking asylum. https://lawprofessors.typepad.com/immigration/2021/11/biden-is-replaying-a-forgotten-us-atrocity-against-haitian-refugees.html

An Administration unwilling to stand up for values, justice, and the rule of law for the most vulnerable among us doesn’t stand for much of anything at all. Maybe cowardice and lack of moral compass is the reason why Dems can’t govern and keep losing elections they should have won!

The GOP long ago “cornered the market” on dishonesty, immorality, and anti-democratic behavior. The Dems can gain nothing, and lose much, by emulating them!

🇺🇸Due Process Forever!

PWS

11-05-21

Related posts:

  1. 🛡⚔️👍🏼“SIR JEFFREY” CHASE — Garland’s Immigration “Judges” Pull The Ol’ “Bait & Switch” — They Only Are “Judges” When “OIL” Is Trying To Convince Ethically & Legally Challenged Article III Courts To “Defer” To EOIR Decisions — Otherwise, They Are Expected To Act Like DOJ ”Grundoons” Mindlessly Carrying Out The Executive’s Agenda Cloaked In Quasi-Judicial Disguise!
  2. 🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO:  “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. 🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!

TAL @ SF CHRON:  GARLAND’S LATEST BOGUS GIMMICK TO REDUCE BACKLOG GIVES BIG MIDDLE FINGER 🖕 TO DUE PROCESS, SAY ADVOCATES! 

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

S.F. Immigration Court fast-tracking cases in what critics say call a deportation conveyor belt

By Tal Kopan and Deepa Fernandes

A San Francisco immigration judge took less than an hour on Tuesday to order 23 people deported. But none of the immigrants was present and it’s unclear whether they knew about the hearing — even as they were deported for missing it.

The proceedings are part of a recently enacted effort the San Francisco Immigration Court says it’s undertaking to find immigrants it loses track of. Instead, advocates say the court has set up a deportation conveyor belt, one that fast-tracks removal orders before immigrants can make their case to stay in the country.

The practice appears to have started this summer, when immigration attorneys became aware of a subset of hearings being scheduled for immigrants whose mail was being returned as undeliverable. The court was notifying immigrants of the hearings by sending mail to the same incorrect addresses, practically ensuring few would show up.

In immigration law, not showing up at a hearing is enough to be ordered deported on the spot, in what’s known as an “in absentia” order of removal.

According to court data reviewed by The Chronicle, as many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.

ACLU of Northern California attorney Sean Riordan, who has been tracking the issue, compared the situation to a criminal proceeding where, if a defendant didn’t show up for a routine step, the judge declared them guilty with limited ability to challenge the verdict. What’s more, he said, the court scheduled the proceeding expecting the defendant not to show.

“Our society would not tolerate that, it’s just grossly unfair, and we shouldn’t tolerate something similar happening in the immigration courts,” Riordan said. “It’s especially problematic that the San Francisco Immigration Court is spending significant time and resources to obtain so many removal orders through a special docket in cases where they know people will not be able to appear for their hearings.”

At this time, the effort appears limited to the San Francisco court, one of 70 such venues nationwide that hear immigrants’ cases. But advocates fear other courts may see how many cases the San Francisco bench has closed through in-absentia orders and follow suit, saddling scores of immigrants with unknown deportation orders. The immigration court system is run entirely by the Department of Justice, which also employs the judges.

 

More: https://www.sfchronicle.com/sf/article/San-Francisco-Immigration-Court-fast-tracks-16576102.php

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

 The (completely unnecessary and self-inflicted) “EOIR Travesty” continues! There are many, many ways that Garland could reduce his Immigration Court backlog (most covered by Courtside or elsewhere online) without stomping on any individual rights! But, this utter nonsense doesn’t happen to be one of them!

As anyone with even a passing familiarity with Immigration Court practice knows, DHS and EOIR are notorious for issuing defective notices and then creating illegal “in absentia” orders. The issue of bad notices has actually been to the Supremes twice recently, with the USG losing badly both times, and the possibility of yet a third trip on the horizon. 

Yet, several overt rebukes from the Supremes about “unnecessary corner cutting” have engendered no fundamental changes in the notice system at either agency! Garland & Co. seem just as wedded to anti-due-process, wasteful “mondo enforcement gimmicks” at EOIR as Stephen Miller, “Gonzo” Sessions, and “Billy the Bigot” Barr!🤮 

So much for the “racial justice agenda” at DOJ and the reputations of DAG Lisa Monaco, Associate AG Vanita Gupta, and AAG/Civil Rights Kristen Clarke, who have all “looked the other way” while their “boss” Garland continues to promote White Nationalist, anti-immigrant, resource wasting policies at EOIR.☠️

Then, incompetent, tone-deaf Dem politicos wonder why support among their “loyal progressive base” is fading fast? Progressives should “remember the EOIR disaster” and total lack of concern for those “fighting the good fight” in Garland’s disgracefully dysfunctional courts when any of Garland’s complicit lieutenants come up for future Article III judicial appointments! 

Conduct like Garland’s at EOIR is a direct result of progressives allowing themselves to be “pushed around and disrespected” by a “Democratic Party Establishment” that gives not a hoot for immigrant justice, racial justice, or fair treatment of asylum seekers except when it’s time to solicit contributions or get out the vote! Vice President Kamala Harris appears to have taken a “leave of absence” on what was supposed to be one of her “signature issues!”    

Garland’s “in your face tone-deafness” also contains a very clear message that progressive advocates aren’t “getting!” It’s going to take a “radical break from the past” to achieve any meaningful immigration reform at DOJ!

🇺🇸Due Process Forever!

PWS

11-01-21

Related posts:

  1. ⚖️FINALLY, HOUSE TO EXAMINE GARLAND’S DYSFUNCTIONAL, MISMANAGED, LEADERLESS IMMIGRATION “COURTS” & NEED FOR DUE-PROCESS-FOCUSED REFORMS! — Tal Kopan Reports For SF Chron!
  2. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  3. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  4. ⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!

☠️🤮UNDER NEW MISMANAGEMENT: Trump’s “New American Gulag” (“NAG”) Now Being Run By Biden, Harris, & Mayorkas, With Garland’s Embedded “Star Chambers” — Coercion, Denial Of Right To Counsel Endemic In Illegal, Immoral, Secretive Biden “Civil” Prison System! — “[W]ithout having knowledge, we’ll go directly to the slaughterhouse!” ⚰️ — That’s The Goal Of “Detention & Deterrence!”

Slaughterhouse
“[W]ithout having knowledge, we’ll go directly to the slaughterhouse!”
Creative Commons License
Star Chamber Justice
“Do you still want to talk to a lawyer, or are you ready to take a final order?” “Justice” Star Chamber Style
Emma Winger
Emma Winger
Staff Attorney
American Immigration Council
PHOTO: Immigration Impact

https://immigrationimpact.com/2021/10/29/ice-detention-contact-lawyer/

Emma Winger writes on Immigration Impact:

“Ben G.” is a 35-year-old veterinarian from Nicaragua who fled to the United States after he was beaten and tortured by police. When he crossed the border into the United States, he requested asylum. U.S. Immigration and Customs Enforcement (ICE) eventually transferred Ben to the Winn County Correctional Center, an ICE detention facility in rural Louisiana located four hours away from the nearest metropolitan area. It is also the facility with the fewest immigration attorneys available in the entire country.

Despite passing the government’s initial screening and having  a credible fear of persecution, Ben was still unable to find a lawyer. As a fellow detained person noted, “without having knowledge, we’ll go directly to the slaughterhouse.”

Ben’s story illustrates the monumental barriers that detained immigrants face in finding lawyers to represent them. As described in a letter sent October 29 by the American Immigration Council, the ACLU, and 88 legal service provider organizations to Department of Homeland Security Secretary Alejandro Mayorkas, ICE detention facilities have systematically restricted the most basic modes of communication that detained people need to connect with their lawyers and the rest of the outside world, including phones, mail, and email access.

This must change. The immigration detention system is inherently flawed, unjust, and unnecessary. The best way to eliminate these barriers to justice is to release people from detention.

Although immigrants have the right to be represented by lawyers in immigration proceedings, they must pay for their own lawyers or find free counsel, unlike people in criminal custody who have the right to government-appointed counsel. In many cases, detained immigrants cannot find lawyers because ICE facilities make it so difficult to even get in touch and communicate with attorneys in the first place.

The importance of legal representation for people in immigration proceedings cannot be overstated. Detained people with counsel are 10 times more likely to win their immigration cases than those without representation. Yet  the vast majority of detained people — over 70% — faced immigration courts without a lawyer this year.

ICE has set the stage for this problem by locating most immigration detention facilities far from cities where lawyers are accessible. Each year, ICE locks up hundreds of thousands of people in a network of over 200 county jails, private prisons, and other carceral facilities, most often in geographically isolated locations, far from immigration attorneys.

Even when attorneys are available and willing to represent detained people, ICE detention facilities make it prohibitively difficult for lawyers to communicate with their detained clients, refusing to make even the most basic of accommodations. For example, many ICE facilities routinely refuse to allow attorneys to schedule calls with their clients.

As described in the letter, the El Paso Immigration Collaborative reported that staff at the Torrance County Detention Facility in New Mexico have told their lawyers that they simply don’t have the capacity to schedule calls in a timely manner, delaying requests for more than one week or more.

The University of Texas Law School’s Immigration Law Clinic attempted to schedule a video teleconferencing call with a client at the South Texas ICE Processing Center. An employee of the GEO Group, Inc., which runs the facility, told them that no calls were available for two weeks.

. . . .

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

A “Jim Crow Mentality” of never being held accountable for abuses of law or human morality permeates the politicos, legislators, and Federal Judges of both parties responsible for enabling and upholding this toxic system. 

Nowhere is this more obvious than at the DOJ Civil Rights Division. While pontificating on racially abusive local police policies and actions, these folks go to great lengths to overlook the DOJ-run “Star Chamber Courts” embedded in DHS’s “New American Gulag” that disproportionally harm persons of color and deny them basic legal, civil, and human rights every day. 

This system is thoroughly rotten! Yet, Garland’s DOJ “defends the indefensible” in Federal Court almost every day.

🇺🇸⚖️ Due Process Forever!

PWS

10-30-21

Related posts:

  1. 🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO:  “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”
  2. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  3. 🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!
  4. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!

☹️👎🏽BUMBLING BIA BADLY BUNGLES BASICS, AGAIN! — Applies Wrong Standard In Seeking To Reverse Valid CAT Grant — Obviously Frustrated 3rd Cir. Reinstates IJ Decision Following BIA’s Inept Attempt @ Appellate  Review! — Arreaga Bravo v. A.G.

Woman Tortured
The BIA’s blunders in trying to help out their “partners” @ DHS Enforcement can sometimes seem almost comical. But, they are no laughing matter to those facing persecution or torture as a result! Why is Garland indifferent to life-threatening injustice in his courts?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www2.ca3.uscourts.gov/opinarch/203300p.pdf

Key Quote from Judge Greenaway’s decision:

Given the strength and rigor of the IJ’s underlying opinion, along with the BIA having exceeded its proper scope of review, we will vacate the BIA’s final order of removal and remand with instructions to reinstate the IJ’s opinion.

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

There is the good, the bad, the ugly, and the absurdly horrible. This latest BIA travesty falls in the latter category.

Not surprisingly, the Circuit opinion quotes liberally from the BIA’s insipid, mealy-mouthed “bureaucratic double-speak” language! To paraphrase my BIA colleague the late Judge Fred Vacca, thank goodness the 3rd Circuit finally put an end to this “pathetic attempt at appellate adjudication.”

Interesting that rather than remanding to give the BIA a chance to deny again on some newly invented specious basis, the court just reinstated the IJ opinion. There should be a message here! But, Garland and his lieutenants aren’t “getting it!”

This case illustrates deep systemic and personnel problems that Garland has failed to address. Instead of summarily dismissing the DHS’s frivolous appeal with a strong warning condemning it, these types of bad BIA decisions contribute to the unnecessary backlog and both encourage and reward frivolous actions by the DHS.

Additionally, reversing, for specious reasons, a well-done and clearly correct IJ decision granting relief, just to carry out the wishes of DHS Enforcement and political bosses, is intended to discourage respondents and their attorneys while unethically steering Immigration Judges toward a “norm of denial.”

Abused women of color from the Northern Triangle have been particular targets of the EOIR’s seriously skewed anti-immigrant adjudications. This makes the Garland DOJ’s  claims to be a “champion of racial justice” ring all the more hollow and disingenuous in every context. There will be no racial justice in America without radical EOIR reform!

What ever happened to our first ever woman of color Veep? Hypothesize that one of the BIA Appellate Immigration Judges responsible for this mess had come before the Senate Judiciary Committee for confirmation. Wouldn’t you have had some questions about judicial qualifications? So, why is it OK to continue to employ them in untenured Executive Branch quasi-judicial positions where they exercise life or death power over many of the most vulnerable among us, overwhelmingly persons of color, many women, lots of them unrepresented! Kamala Harris, where are you?

It’s all part of an improper “culture of denial” at EOIR, led and “enforced” by the BIA. Garland has disgracefully failed to come to grips with the “anti-due process” that he fosters every day that the “Miller Lite Holdover BIA” remains in their appellate positions.

For heavens sake, with unnecessary “TV Adjudication Centers” coming out EOIR’s ears, reassign these purveyors of bad law and appellate injustice to those lower “courts” where they can do less cosmic damage and real, better qualified appellate judges can “keep on eye” on them!

I keep thinking (or perhaps hoping) that eventually Circuits will tire of continually redoing the BIA’s sloppy work product and then having the cases come back again, sometimes years later, denied on yet another bogus ground!

On the flip side, Judge Garland seems to have infinite “patience” with well-documented substandard performance and painfully obvious anti-immigrant, pro-DHS bias on the part of his BIA. 

Wrongful denial of CAT costs lives and can improperly condemn individuals to gruesome and painful death! This is no way to run a court system! I guess it’s easier to “tolerate” lousy judicial performance when you aren’t the one being unfairly and illegally condemned to torture!

Past time for a “line change” in Falls Church! 

🇺🇸Due Process Forever!

PWS

10-29-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  3. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  4. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

⚖️👩🏻‍⚖️👩🏽‍⚖️👨🏾‍⚖️👨🏻‍⚖️ GARLAND FINALLY SHOWS SOME PROGRESS ON QUALITY IMMIGRATION JUDGE HIRING — 2/3 of 24 Appointments Have Prior Immigration Practice & Almost Half (11) Have Recent Experience Representing Individuals In Immigration Court, A Substantial Improvement In A Flailing System!

 

After an extremely disappointing start, Attorney General Merrick Garland is finally bringing some much needed balance and immigration expertise to his broken, dysfunctional, hopelessly backlogged, and overall reeling Immigration Courts. He appears to be at least partially heeding the advice of experts and tapping into the deep pool of private sector, NGO, and clinical program talent to improve the balance, professionalism, fairness, and efficiency of the U.S. Immigration Courts.  

After years of a toxic combination of neglect, mismanagement, outright “weaponization,” and poor to haphazard judicial selections biased against well-qualified immigration and Immigration Court experts from the private/NGO/academic sectors, the latest round of judicial hiring by Garland shows a more appropriate and diverse balance of private sector experts, government employees with relevant immigration experience, and those with other types of judicial experience.

Here’s the complete list of 24 new Immigration Judges from EOIR:

https://www.justice.gov/eoir/page/file/1444911/download

For me, personally, two names particular “jumped out.” First, “NDPA All-Star”🌟 Judge Rebecca J. Walters, until recently the Managing Attorney at nonprofit AYUDA’s Virginia Office, will be Assistant Chief Immigration Judge at the Arlington Immigration Court! (Full disclosure: I am on the AYUDA Advisory Board.) Her “specialty” at AYUDA was litigation on behalf of SIJS applicants before both immigration agencies and the Virginia State Courts. 

Judge Rebecca Walters
Hon. Rebecca J. Walters
Assistant Chief Immigration Judge
Arlington, VA
PHOTO: AYUDA

Rebecca and her colleagues appeared before me at the Arlington Immigration Court. Among many other things, she was legal intern at our court while a student at the Washington College of Law at American University. We’ve all come a long way since the days when Rebecca and her fellow interns and JLCs used to “run the stairs” with Judge John Milo Bryant and me when our court was at Ballston, VA!

The second notable appointment is Judge Louis Gordon, until recently of Los Angeles, now at the San Francisco Immigraton Court. He is the son of the late beloved Immigration Judge Nate Gordon. As I mentioned in an obit for his father in Courtside, Louis, then a highly regarded private attorney, argued before the BIA when we visited Los Angeles during my tenure as BIA Chair. 

https://immigrationcourtside.com/2019/01/17/in-memorium-judge-nate-gordon-one-of-the-good-guys-tribute-by-carl-shusterman-esquire/

Congrats to Judge Walters, Judge Gordon, and the other recent selections.

Don’t get me wrong! It’s going to take more  — much, much more — than a few better judicial appointments to right the rapidly sinking ship at Garland’s EOIR. But, at least it appears to be progress. And, every voice of expertise, fairness, due process, and humanity in a system seriously lacking in all the foregoing qualities helps save lives and generate some energy for systemic improvements, in both “culture” and actual judicial performance, that have long been missing at EOIR.  

Yes, although the honchos at the top of EOIR’s “Management Pyramid” would have you believe otherwise, practical, positive change can often come from below in any organization, even one as totally and completely screwed up as EOIR!

Pyramid
Amazingly, the guys at the bottom of this structure sometimes know more about fixing problems than those sitting at the top!
Kheops-Pyramid
Wikipedia Commons License

🇺🇸Due Process Forever!

PWS

10-28-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  2. COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –  SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”
  3. 🇺🇸🗽⚖️🧑🏽‍⚖️👍🏼BREAKING — THE NDPA STRIKES BACK WITH VIGOR: 70 Human Rights, Civil Rights, Due Process, Good Government, Immigration, Equal Justice, Racial Justice, Progressive, Gender Justice Organizations Rip Garland, Monaco In Letter Protesting Their Abject Failure To Address Due Process, Racial Justice, Rule Of Law Disaster At EOIR — New, Competent, Diverse, Progressive Leadership & Judges Needed To Counteract 4 Years Of White Nationalism, Biased Hiring, “Malicious Incompetence!” — No More “Miller Lite Unhappy Hour” @ DOJ!
  4. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

⚖️🗽🇺🇸👍🏼👩🏻‍⚖️ JUSTICE FOR KIDS IN COURT — ROUND TABLE ⚔️🛡 “WARRIOR QUEEN” 👸🏻 HON. SARAH BURR SPEAKS OUT FOR “FAIR DAY IN COURT FOR KIDS ACT OF 2021!” — “We cannot in good conscience allow any unaccompanied children to appear in immigration court alone.”

Hon. Sarah Burt
Hon. Sarah Burr
Retired U.S. Immigration Judge
Knightess of The Round Table
Photo Source: Immigrant Justice Corps website
Knightess
Knightess of the Round Table

https://thehill.com/opinion/judiciary/578076-why-are-children-representing-themselves-in-immigration-court

From The Hill:

As a retired immigration judge, I have watched with concern reports of the surge of unaccompanied immigrant children crossing the border into the United States. There are many reasons for concern—their housing, their health, their safety. To me, there is an additional, very real, and often overlooked question looming on the horizon: What will happen when these children, even toddlers and babies, appear alone in immigration court?

Yes, alone. While a person in immigration proceedings is entitled to be represented by a lawyer if they can afford it, there is no constitutional or even statutory right to appointed counsel in immigration proceedings. That means those who cannot afford a lawyer must appear in court alone, including children.

While I am pleased to see the Biden administration plans to provide government-funded legal representation for certain immigrant children in eight U.S. cities, this new initiative is still a far cry from the universal representation needed to support children in removal proceedings.

Imagine, if you can, a child — 2 years old, 10 years old or 17 years old — appearing before an immigration judge alone. How does a child, already intimidated and confused by the courtroom setting, understand the nature of the court proceedings and the charges against them? How can a child understand the complexities of immigration law, their burden of proof, and possible defenses against deportation? The short answer is they cannot.

. . . .

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

Read the rest of the op-ed at the above link.

The “Fair Day For Kids in Court Act of 2021” is endorsed by the “Round Table” ⚔️🛡 among many other groups in the NDPA!

Here’s a summary (courtesy of Hon. “Sir Jeffrey” S. Chase):

Senator Mazie Hirono (of [Round Table “Fighting Knightess” Judge] Dayna Beamer’s home state of Hawaii) plans to introduce the attached bill on Thursday, that would provide counsel for unaccompanied children in Immigration Court by:

  • Clarifying the authority of the federal government to provide or appoint counsel to noncitizens in immigration proceedings;

  • Requiring the appointment or provision of legal counsel to all unaccompanied children in proceedings unless they obtained counsel independently;

  • Mandating access to counsel for all noncitizens in CBP and ICE facilities;

  • Requiring that, if the government fails to provide counsel to an unaccompanied child and orders that child removed, the filing of a motion to reopen proceedings will stay removal; and

  • Requiring government reporting on the provision of counsel to unaccompanied children.

Here’s the text of the bill, which will be introduced by Sen. Hirono later this week:

Fair Day Text FINAL

Thanks Sarah and Jeffrey!  So pleased to be part of the “support group” for this long-overdue and badly needed legislation that would do what to date Congress, the Federal Courts, and DOJ have failed to do: Enforce the Due Process Clause of the Fifth Amendment in Immigration Court!

Wendy Young
Wendy Young
President, Kids In Need of Defense (“KIND”)

And, of course, we should never forget the ongoing, daily work performed by NDPA Superhero 🦸🏻‍♂️  Wendy Young and Kids in Need of Defense (“KIND”) in ending the disgraceful blot on American justice of unrepresented kids in Immigration Court:

Dear Paul,

I met Maria* in immigration court.  The judge sat in his robes behind the bench when he called her deportation case.

A trial attorney from the Department of Homeland Security sat at the front, prepared to argue for Maria’s removal from the U.S.. Maria was by herself without a lawyer by her side. 

She was five years old.

She approached the bench, wearing her nicest clothes, clutching a doll. She sat behind the respondent’s desk, barely able to see over the microphone. The judge asked her a number of questions about why she was in the US and about her life here, none of which she could answer. Her eyes grew bigger and bigger as she sat silently, until he finally dismissed her and told her to come back at a later date. As she left the court, he asked her what the name of her doll was. In Spanish, she replied, “Baby Baby Doll.” That was the only question she could answer.

That moment haunts me. I continually wonder about the insanity of asking a five year old to stand alone and defend herself against deportation in a federal courtroom. It should never happen. Which is exactly why KIND has mobilized and trained a powerful group of pro bono attorneys to represent and work with children just like Maria who deserve legal representation in a U.S. immigration court.

This October, KIND is honoring the pro bono attorneys who have helped more than 27,000 children referred to KIND receive legal representation that often means the difference between relief and deportation and, by extension, a child’s safety or danger.

Will you make a tax-deductible donation now to support the children we work with in and out of the courtroom?

Here’s the direct impact your gift today can have for children like Maria:

Paul, these are just a few ways we’ll put your gift to work, but know that your donation in ANY amount is critical to the number of children we can reach, and represent, through the amazing efforts of our pro bono attorney network.

These kids are scared, they are traumatized. They are intimidated. And without the services provided by organizations like KIND, they are all alone.

But that’s why we’re here – and that’s why I hope you’ll consider making a gift today to support this life-changing work. Your donation today will have a direct impact on the lives of refugee children who deserve to have someone in their court.

Thank you so much for your generosity today, and always.

🇺🇸Due Process Forever!

PWS

10-26-21

 

 

 

Related posts:

  1. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!
  2. ⚖️🇺🇸👍🏼🗽DEAN KEVIN JOHNSON’S SUCCINCT RESPONSE TO GREG ABBOTT’S PREDICTABLE SOUTHERN BORDER BS IS WORTH A READ! — PLUS: ARELIS HERNANDEZ OF WASHPOST WITH SOME MUCH-NEEDED TRUTH & PERSPECTIVE FROM THOSE ACTUALLY LIVING ON THE SOUTHERN BORDER: “We need more lawyers and judges, not more troops or technology.”
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. 🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership!  — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!

⚖️”THEY BELONG IN THE TRASH BIN” 🗑☠️ — NAIJ CAUTIOUSLY HOPEFUL THAT END OF QUOTAS WILL BRING MEANINGFUL CHANGE — Will Director David Neal Topple Toxic Top-Down Paramilitary Bureaucratic Structure @ EOIR? — Courts Aren’t “Agencies” & Can’t Be “Micromanaged” By “Edicts From On High” — Meaningful Advance Input From Judges, Court Clerks, Stakeholders, Outside Judicial Experts Has Been MIA @ EOIR For Decades, & Disaster & Dysfunction In Courts Show It!

Honorable Mimi Tsankov
Honorable Mimi Tsankov
U.S. Immigration Judge
President, National Association of Immigration Judges (“NAIJ”)

For immediate release – October 20, 2021

Contact: Jamie Horwitz, jhdcpr@starpower.net, 202/549-4921

An End to a Highly Controversial Quota System Imposed on Immigration Judges

This week Immigration Judges received an email message from Chief Immigration Judge Tracy Short stating that the performance metrics imposed by the Trump administration which violated judicial ethics are now “suspended.”

WASHINGTON –A deeply flawed and inefficient U.S. Department of Justice program that evaluated Immigration Judges primarily on the number of cases they heard, has been “suspended.” The DOJ will no longer evaluate judges on the number of cases they decide Chief Judge Tracy Short wrote in an email sent to the nation’s roughly 500 Immigration Judges this week.

Over the past three plus years, Immigration Judges have looked over their shoulders, worried about being disciplined, just for doing their jobs — providing due process.

“This week’s actions by the Department of Justice under Executive Office for Immigration Review Director David Neal are a step in the right direction toward restoring a greater measure of integrity to our nation’s Immigration Courts,” said Mimi Tsankov, president of the National Association of Immigration Judges. “Our organization looks forward to working with management to restore a fairer process that allows judges to focus on doing their jobs properly. The performance metrics developed by the Trump administration were a violation of judicial ethics, they belong in the trash bin.”

“The Agency is in the process of developing new performance measures, drawing from past successful measures and appropriate input, that will accurately reflect the workload of an immigration judge,” the chief judge wrote in his emailed message. “These new performance measures will focus on balance and equity for the various types of docket assignments.”

In 2018, then U.S. Attorney General Jeff Session imposed a quota of 700 decisions per year on each Immigration Judge, tied to performance reviews, regardless of the complexity of the cases.

The Trump administration also attempted to silence NAIJ from speaking out on the quota system and other policies by decertifying the union. While the union-busting efforts of the previous administration were not completely successful, full collective bargaining rights have yet to be restored to NAIJ.

The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.

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

Hon. David. L. Neal
Hon. David L. Neal
Director
Executive Office For Immigration Review
USDOJ
PHOTO: C-SPAN

Can David Neal bring all the real parties in interest “to the table,” fashion workable, realistic judicial policies and procedures driven by due process and the realities of Immigration Court practice, keep DOJ’s political meddling at bay, and then tap “new talent” that can actually implement positive change in a judicial, non-bureaucratic manner that achieves “systemic buy-in?” Does he even want to? If so, will Team Garland empower him to succeed, or undermine him?

One thing in Director Neal’s favor: He already retired from EOIR once and presumably could do so again if pressured to elevate political agendas over due process and best practices.

On the flip side, at least one other Director in that same position chose to “go along to get along” with decisions and policies from the DOJ that actively undermined due process and substantially decreased confidence in government.

We’ll see whether the NAIJ’s “cautious optimism” about the “Neal Era @ EOIR” is justified or just another dashed dream about due process, fundamental fairness, and best practices!

🇺🇸Due Process Forever!

PWS

10-24-21

Related posts:

  1. KATY MURDZA 👩‍🏫“DE-GOBBLEDYGOOKS” EOIR CLOWN SHOW’S 🤡 PARTING SHOTS AT DUE PROCESS, RATIONAL COURT MANAGEMENT 🤮 — “Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.”
  2. “A new and dark era as Immigration Judges,” Says Judge A. Ashley Tabaddor, NAIJ President!
  3. EVERY U.S. CONGRESSPERSON, SENATOR, & ARTICLE III JUDGE INCLUDING ALL THE JUSTICES OF THE U.S SUPREME COURT SHOULD BE REQUIRED TO WATCH THIS 4-MINUTE VIDEO SHOWING WHY TODAY’S “CAPTIVE” U.S. IMMIGRATION “COURT” IS A FESTERING, POTENTIALLY MORTAL WOUND TO OUR CONSTITUTION & OUR HUMANITY – Starring The U.S. Constitution & Judge A. Ashley Tabaddor, President, National Association of Immigration Judges (“NAIJ”)
  4. Judge Mimi Tsankov @ ABA JOURNAL: 🆘 Immigration Courts Now A Human Rights Catastrophe Threatening The Heart ❤️ & Soul 😇 Of American Justice!

☠️👎🏽GARLAND EOIR’S DISTURBINGLY BAD ANALYSIS IN YET ANOTHER ASYLUM CASE “OUTED” BY FIRST CIRCUIT! — Lopez Troche v. Garland

 

Dan Kowalski reports for LexisNexis Immigration Community:

http://media.ca1.uscourts.gov/pdf.opinions/20-1718P-01A.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-credibility-lopez-troche-v-garland#

“Mario Rene Lopez Troche (“Lopez Troche”), a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (“BIA”) that affirms the denial of his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We vacate and remand. …  [T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified. The BIA cited to three portions of Lopez Troche’s testimony in support of its determination that the IJ did not clearly err in finding an inconsistency between what Lopez Troche told the asylum officer during his reasonable fear interview and how he testified as to the reporting of past abuse. But, none of those passages supports the BIA’s determination. … Nor is it possible to read either the BIA or the IJ to have inferred from Lopez Troche’s failure to report to the police the specific incidents that he discussed in his testimony that he was asserting in that testimony that did not report any incidents of abuse ever. Neither the IJ’s opinion nor the BIA’s expressly purports to premise its ruling as to adverse credibility on the basis of such inferential reasoning, see Chenery, 318 U.S. at 95, and we do not see what basis there would be for drawing that inference on this record, given that, in his reasonable fear interview, declaration, and testimony, Lopez Troche discussed a series of traumatic physical and sexual assaults that he had experienced that appears to have stretched back to a time when he was eight years old and that thus encompassed many more incidents than those addressed specifically in the portions of his testimony on which the BIA focused. As a result, we must vacate and remand the BIA’s order affirming the denial of Lopez Troche’s request for withholding of removal.”

[Hats way off to PAIR Project Legal Director Elena Noureddine and Staff Attorney Irene Freidel!]

pastedGraphic.png pastedGraphic_1.png

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

Law students and attorneys of the NDPA are out there helping refugees every day. Meanwhile, over at Garland’s dysfunctional EOIR, Immigration Judges and BIA Appellate Immigration Judges strain to improperly “diddle the record” to deny relief to asylum seekers! Then, OIL defends them!

Essentially, in this case, the BIA “made it up and misrepresented the record” in an effort to deny asylum for specious reasons! Then, OIL tried to “blow it by” the Circuit! 

“[T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified.” That’s “judgespeak” for: The BIA invented non-existent “inconsistencies” to unfairly deny asylum. Then, OIL defended that fabrication and denial of due process! What does this say about Garland’s leadership at DOJ?

Whatever happened to legal and judicial ethics? Clearly they were “deep sixed” under Sessions and Barr. But, why is Garland continuing to operate DOJ as an “ethics and quality free zone?”

This is a bad system with the wrong folks in too many judicial and leadership positions and presenting an overwhelming need for robust, bold change in how decisions are made and defended in Circuit Court. So far, Garland has not made the fundamental personnel changes and “quality upgrades” necessary to bring due process and some semblance of expertise and order back to his broken Immigration Courts! Why not?

Why are the kind of individuals who should be Immigration Judges and EOIR judicial leaders, talented lawyers like Elena and Irene, still “on the outside” rather than being actively recruited and brought in to replace those unable to perform judicial, administrative, and litigation duties in a fair, expert manner, that enhances due process? Why is EOIR still operating with a “judiciary” the majority of whom were installed by the Trump regime at Justice to “dehumanize, deport, and deter” without regard for due process? Why is OIL continuing to “defend the indefensible?” Why isn’t Congress asking Garland these questions?

Government lacking in expertise, intellectual honesty, professional ethics, and accountability is “bad government.” That’s true no matter which party holds power!

🇺🇸Due Process Forever!

PWS

10-21-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. 🏴‍☠️☠️🤮👎🏻ERROR SUPPLY: EOIR’s Anti-Asylum Bias, Failure To Apply Precedents, Earns Yet Another Rebuke From 3d Cir.  — Blanco v. AG
  3. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  4. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!

THE GIBSON REPORT — 10-18-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Phantom NTAs, Rubber Stamps, Elimination Of Masters, & Other Insanity Surfaces @ Garland’s EOIR “Clown Courts” 🤡

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”I

As a side note, the phantom NTA issue and literal IJ rubber stamp story are both crazy.

 

If you or any of the retired IJs wanted to follow-up on the phantom NTA issue, I just wanted to pass along a good source: CLINC webinar @1:07:08: https://cliniclegal.org/training/archive/orders-border. It also affects the ability to file motions to change venue because DHS is serving the NTA on EOIR the day of the master calendar hearing, so there are no proceedings for which to file a motion until the day of court.

 

-Elizabeth

 

·         AILA: Liaison Update: Key Takeaways from Listening Session on Immigration Detention Ombudsman

·         AILA: Liaison Update: Key Takeaways from Stakeholder Engagements with DHS Operation Allies Welcome Leadership

·         AILA: Practice Alert: Biden Administration Plans to Rescind COVID-19 Travel Bans and Instead Require Proof of Vaccination

·         AILA: Practice Pointer: What You Need to Know About the Third Country Transit Ban

·         AILA: Sample Briefs and Resources

·         AILA: Asylum Cases on Social Group

·         AILA: Asylum Cases on Serious Nonpolitical Crime

·         AILA: Asylum Cases on Political Opinion

·         AILA: Asylum Cases on Motion to Reopen

AILA: Asylum Cases on Miscellaneous

·         AILA: Asylum Cases on Deferral of Removal Under CAT

AILA: Asylum Cases on Credibility

·         CLINIC: Ethical Considerations in Using Technology for Legal Services

·         CLINIC: Liberian Refugee Immigration Fairness: FAQs for Legal Practitioners

·         CRS: The Department of Homeland Security’s Reported “Metering” Policy: Legal Issues

·         CRS: Visa Waiver Program

·         DHS OIG: ICE Needs to Improve Its Oversight of Segregation Use in Detention Facilities

·         DHS: Seneca Mental Health Services Resources

·         EOIR: Webex and Open Voice Information for NYC Immigration Judges (attached)

·         Hoppock: Here Are the BIA Chairman’s Memos From 2004 to 2018 Obtained Through FOIA

·         IRAP: Country conditions for Afghans

·         Migration Policy Practice: Children’s Experiences On The Central America–Mexico–United States Migration Corridor: Data And Policy

·         MPI Launches 20th Anniversary Podcast Series, World of Migration, Examining the Evolution of the Migration Policy Field and Where It Goes Ahead

·         USCIS: How to Make Your Communication with the USCIS Contact Center More Effective

 

EVENTS

 

 

ImmProf

Monday, October 18, 2021

·         Kidnapping on Rise in Haiti

Sunday, October 17, 2021

·         Good judge? Bad judge?

·         Presidential Determination on Refugee Admissions for Fiscal Year 2022

·         Trouble in Paradise? Tensions Flare between Biden Administration Officials and Immigrant Activists

Saturday, October 16, 2021

·         Guantánamo’s Other History

·         Biden Administration to Bring Back “Remain in Mexico” Policy pursuant to Court Order

Friday, October 15, 2021

·         Good News, Bad News: Biden Narrows Expedited Removal, Continues Title 42 Expulsions

·         Afghan Immigrants in the United States

·         Children’s experiences on Central America-US migration corridor highlighted in IOM report

·         From the Bookshelves: Saving the Freedom of Information Act by Margaret B. Kwoka

·         ABA Commission on Immigration offers students “hands-on” experience with people in detention

·         The Gift That Keeps on Giving? Judge Orders Trump To Give Deposition In Immigration Activists’ Suit

·         Immigration Article of the Day: Immigration Law’s Arbitrariness Problem by Shalina Bhargava Ray

Thursday, October 14, 2021

·         From The Bookshelves: Beautiful Country by Qian Julie Wang

·         Democrats consider new immigration reform proposal

·         Immigration Article of the Day: Are People in Federal Territories Part of “We the People of the United States”?  by Gary Lawson and Guy I. Seidman

Wednesday, October 13, 2021

·         The Role of Mental Health Evaluations in Immigration Court Proceedings

·         UNLV Law Dean Search

·         From the Bookshelves: Mexican American Civil Rights in Texas: Latinos in the United States (Robert Brischetto and J. Richard Avena, editors)

·         US borders reopening to tourists, travelers

·         Biden administration defends H1-B wage rule

·         Migrants and refugees caught up in Belarus-EU “hybrid warfare” are freezing to death in no man’s land

·         Supreme Court to consider whether to reinstate death penalty for Boston Marathon bomber

·         Immigration Article of the Day: “Discretion and Disobedience in the Chinese Exclusion Era”  by Shoba Sivaprasad Wadhia

Tuesday, October 12, 2021

·         DHS Memo on Worksite Enforcement

·         Democratic Senators Lambaste Biden Haitian Policies

·         Afghan Immigration Fears Prompt Greece to Increase Number of Guards at Turkish Border

·         Immigration Article of the Day: Introduction to the Symposium on COVID-19, Global Mobility and International Law  by Thomas Gammeltoft-Hansen, Tenday Achiume, & Thomas Spijkerbber

Monday, October 11, 2021

·         Economist David Card, Who Studied The Effects of Mariel Boatlift Migration on the Miami Labor Market, Wins Nobel Prize

·         From the Bookshelves: Our Stories Carried Us Here Hardcover by Tea Rozman Clark

·         Trapped In Diplomatic Limbo

·         Afro Mexicanidad: A Symposium

·         Immigration Article of the Day: The Challenge of Immigration: A Radical Solution  by Gary Becker

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

Alfred E. Neumann
Judge Garland isn’t worried! HE doesn’t have to practice before the dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons

Absolutely “nutsos!” But just “another day at the office” in the three-ring circus 🎪🤹‍♀️🤡  that “Ringmaster Garland” calls his “courts!” Where’s the accountability for this disgraceful mess? Where is the Congressional oversight? What happened to the essential “Article I legislation” to remove this continuing clown show from a flailing and failing DOJ?

🇺🇸Due Process Forever!

PWS

1-21-21

 

 

Related posts:

  1. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  2. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  3. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  4. THE GIBSON REPORT — 05-17-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Continuing To Highlight Garland’s Tone-Deaf Failure To Bring Justice, Due Process, Progressive Expertise To EOIR! — Hey Progressives & Due Process Advocates, Had Enough Of His “Amateur Night At The Bijou” Approach To EOIR? — Get Mad, Make Your Voices Heard, Demand Change, Demand Better! — Much Better!

🍅MORE ROTTEN TOMATOES FOR GARLAND, SESSIONS: NDPA SUPERSTAR 🦸🏻‍♂️🌟 BEN WINOGRAD CREAMS GARLAND’S BIA, OIL IN 4TH CIR! — Sessions’s Wrong Matter of S-O-G- & F-D-B- (Illegally Denying Authority To Terminate) Falls, As OIL Argues Nonsensical Position — Garland’s Continuing Wasteful Failure To Get Control Of Immigration Bureaucracy @ DOJ Squanders Time & Resources, Puzzles Article IIIs, Promotes Arbitrary & Capricious “Justice” @ Justice! — Chavez-Gonzalez v. Garland

Ben Winograd
Ben Winograd, Esquire
Immigrant & Refugee Appellate Center
Falls Church, VA

Here’s the complete opinion by Judge Thacker, joined by Judges Floyd & Harris:

https://drive.google.com/file/d/1MwZtKE73ucoEVTR9HOZcqUWxTB6RfyxK/view?usp=sharing

Here’s my favorite quote from Judge Thacker’s opinion, highlighting Garland’s out of control DOJ immigration bureaucracy! 

This case was argued on September 21, 2021, more than two months after Matter of Cruz-Valdez, 28 I&N Dec. 326 (AG 2021), where AG Garland had refuted Sessions’s legal reasoning! Moreover, the 4th Circuit itself had pointed out the legal flaws in overruling Session’s abominable Castro-Tum, his abuse of AG authority that began this whole sorry episode in American jurisprudence. Yet, OIL argued this case as if nothing had happened and “Gonzo” Sessions were still in charge!

Looking to the character and context of the Government’s litigating position — in stark contrast to its recent regulatory position explained below — we are quite frankly puzzled that the Government currently stands in support of Attorney General Sessions’s decision in Matter of S-O-G-, particularly in light of the fact that Matter of S-O-G- relies heavily on Castro-Tum, which is no longer good law.

To begin with, this court has overruled Castro-Tum in Romero, in which we relied on the broad language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) to hold that the immigration courts possess the authority to administratively close cases. Indeed, the fact that Castro-Tum has been overruled should not only begin the analysis here, but it should definitively end it.

But, beyond the fact that Castro-Tum is now defunct, Attorney General Garland no longer takes the position set forth in Castro-Tum and has since disavowed the idea that the IJs and BIA cannot administratively close proceedings. In Matter of Cruz-Valdez, Attorney General Garland decided, “Because Castro-Tum departed from long-standing practice, it is appropriate to overrule that opinion in its entirety and restore administrative closure” authority to the agency. Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (A.G. 2021). In doing so, Attorney General Garland noted “three courts of appeals have rejected Castro- Tum” and held that administrative closure is “‘plainly within an [IJ]’s authority’ under Department of Justice regulations.” Id. at 328 (citing Arcos Sanchez v. Att’y Gen. U.S. of

Am., 997 F.3d 113, 121–22 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th 18

USCA4 Appeal: 20-1924 Doc: 54 Filed: 10/20/2021 Pg: 19 of 26

Cir. 2020) (Barrett, J.); Romero, 937 F.3d at 292). Indeed, “[o]nly one court of appeals has upheld Castro-Tum.” Id. (citing Hernandez-Serrano v. Barr, 981 F.3d 459, 464 (6th Cir. 2020). “[B]ut even that court subsequently ruled that [IJs] and the [BIA] do have authority to grant administrative closure in order to permit a noncitizen to apply for a provisional unlawful presence waiver.” Id. (citing Garcia-DeLeon v. Garland, 999 F.3d 986, 991–93 (6th Cir. 2021)). Attorney General Garland’s position on administrative closure in Matter of Cruz-Valdez (and the reasoning behind it) calls into question the Government’s position in this matter and Matter of S-O-G- that IJs and the BIA do not have the inherent authority to terminate proceedings.3

The obvious answer here is that Garland has failed to take the necessary steps to replace the BIA and bring new leadership to OIL.

This should have been “Week One Stuff” after Garland assumed office! Instead, the EOIR system continues to careen out of control, clog the Article III judiciary with semi-frivolous litigation, and destroy human lives! 

How many wrongly-treated respondents are fortunate enough to have Ben Winograd take up their cause, or indeed to have any legal assistance at all? How many can even get to the Court of Appeals to correct Garland’s errors?

The continued dysfunction at EOIR & DOJ is a humanitarian crisis and a threat to our legal system and American democracy! It’s high time for Judge Garland to wake up and treat this mess like the existential crisis it is!

Congrats again to Ben Winograd! Obviously, Garland should have recruited real immigration experts like Ben to be on the BIA or supervise OIL to get this system back on track. Why hasn’t he? 

🇺🇸Due Process Forever!

PWS

10-20-21

Related posts:

  1. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  2. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  3. 😎👍YES! IN A HUGE WIN FOR DUE PROCESS, EFFICIENCY, JUDICIAL INDEPENDENCE, & SANE GOVERNMENT, AG GARLAND OVERRULES SESSIONS’S IDIOTIC MATTER OF CASTRO-TUM PRECEDENT & RESTORES IJs’ AUTHORITY TO ADMINISTRATIVELY CLOSE CASES  — Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)
  4. ⚖️4TH CIRCUIT:  BIA ABUSED DISCRETION, BLEW ANALYSIS, FAILED TO FOLLOW PRECEDENT IN MINDLESS DENIAL OF CONTINUANCE FOR U VISA APPLICANT— Garcia Cabrera v. Garland — A Microcosm Of Garland’s Dysfunctional, Backlog-Building Immigration Courts & His Disgraceful Defense Of The Indefensible In The Article IIIs! — Why Garland’s Inept & Disinterested Performance @ EOIR Is A “Nail In The Coffin” Of American Democracy! ⚰️