Judicial Selection – Page 13 – immigrationcourtside.com

🏴‍☠️“ANY REASON TO DENY”🤮 — GARLAND BIA’S BIASED, ANTI-ASYLUM JURISPRUDENCE CONTINUES TO GARNER PUSHBACK FROM ARTICLE III’s — Dem AG Needs To Pay Attention To Assault On Democracy, Rule Of Law Taking Place In HIS Dysfunctional “Courts!” — Garland Reportedly Plans More Backlog-Building, Due-Process-Denying “Aimless Docket Reshuffling” (“ADR”)!

“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-credibility-cat-njoka-v-garland

CA3 on Credibility, CAT: Njoka v. Garland

Njoka v. Garland (unpub.)

“[W]e conclude that the Board erred in affirming the IJ’s denial of CAT protection. The Board’s sole justification for that affirmance was the adverse credibility finding. The Board suggested that, under Fifth Circuit precedent, an adverse credibility finding defeats a claim for CAT protection. See Ghotra v. Whitaker, 912 F.3d 284, 289 (5th Cir. 2019). But under the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection.1 Ibarra Chevez v. Garland, 31 F.4th 279, 288 (4th Cir. 2022); see Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (“Because there is no subjective component for granting relief under the CAT, the adverse credibility determination on which the IJ relied to deny [the petitioner’s] asylum claim would not necessarily defeat her CAT claim.”). The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.2 See Camara, 378 F.3d at 371-72. Because the Board did not fulfill that duty, we will grant the petition for review in part and remand for the Board to do so.”

[Hats off to Rajan O. Dhungana!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-interpol-red-notice-cat-gonzalez-castillo-v-garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

Gonzalez-Castillo v. Garland

“Petitioner Oscar Gonzalez-Castillo was found to be ineligible for withholding of removal by an Immigration Judge (“IJ”) because there were “serious reasons to believe that [he] committed a serious nonpolitical crime” in his home country of El Salvador. 8 U.S.C. § 1231(b)(3)(B)(iii). The government only presented one piece of evidence supporting application of the serious nonpolitical crime bar, however. It was an INTERPOL Red Notice, described at greater length below. The Red Notice accused Gonzalez-Castillo of committing “strikes” on behalf of the gang MS13, allegedly committed on a date when Gonzalez-Castillo was in the United States rather than in El Salvador, based on the date of entry found by the IJ. We conclude that substantial evidence does not support the IJ’s finding, affirmed by the Board of Immigration Appeals (“BIA”), that Gonzalez-Castillo is ineligible for withholding of removal based on the serious nonpolitical crime bar. This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause. The allocation of the burden of proof in immigration proceedings does not change this outcome. We accordingly grant Gonzalez-Castillo’s petition for review in part and remand to the agency to consider whether Gonzalez-Castillo is eligible for withholding of removal. We also grant the petition as to his claim under the Convention Against Torture (“CAT”), because the record reflects that the agency failed to consider all of Gonzalez-Castillo’s testimony and statements about the harms he suffered in El Salvador at the hands of state actors, so we remand for more complete consideration of the CAT claim. We are not persuaded, however, by arguments in the petition for review challenging the evaluation of evidence that was discussed or by the argument that that the IJ failed sufficiently to develop the record. We dismiss the petition in part as to his claim for asylum, because the arguments Gonzalez-Castillo raises on appeal with respect to the one-year bar for asylum relief were not exhausted before the BIA.”

[Hats off to Amalia Wille (argued) and Judah Lakin, Attorneys; Nicole Conrad and Joya Manjur, Certified Law Students; University of California, Berkeley School of Law, Berkeley, California; for Petitioner, and John P. Elwood, Kaitlin Konkel, and Sean A. Mirski, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amicus Curiae Fair Trials Americas!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-credibility-changed-conditions-sikhs-in-india—singh-v-garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

Singh v. Garland

“We have held that the Board of Immigration Appeals (BIA) may rely on a prior adverse credibility determination to deny a motion to reopen if that earlier finding factually undercuts the petitioner’s new argument. Greenwood v. Garland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does not mean the BIA can deny a motion to reopen just because that motion touches upon the same claim or subject matter as the previous adverse credibility finding. Here, Rupinder Singh submitted new evidence about religious persecution independent of the prior adverse finding. The BIA thus erred in holding that the earlier adverse credibility finding barred Singh’s motion to reopen. The BIA also erroneously concluded that Singh failed to show that the conditions for Sikhs in India changed qualitatively since his last hearing. Clear evidence shows the contrary. We thus grant the petition and remand.”

[Hats off to Garish Sarin!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-abuse-of-discretion-rivera-medrano-v-garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

Rivera-Medrano v. Garland

“Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge (“IJ”) based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings. … The BIA’s oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation.”

[Hats off to SangYeob Kim, Gilles Bissonnette and Henry Klementowicz!]

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President Biden is correct that Trump and his MAGA GOP are the biggest threat to American democracy. But, “Dred Scottification,” systemic denial of due process, and racial injustice still running rampant in Immigration “Courts” under a Democratic Administration is right up there as an existential threat!

Additionally, I’ve been getting reports this week from practitioners in various locations that EOIR is embarking on yet another mindless, ill-informed round of “Aimless Docket Reshuffling” — guaranteed to increase backlogs, decrease effective representation, and spew out more unprofessional and unjust results.

Once more, this inane initiative appears to have been undertaken with neither advance input from, nor sufficient notice to, those most affected — respondents and their attorneys! Same old, same old! This must stop!

Enough, already! Why aren’t all the “movers and shakers” of American law lined up in front of Garland’s Office demanding that he end the assault on our Constitution, common sense, good government, and human decency that unfolds every day in the disgracefully dysfunctional parody of a “court” system that is his sole responsibility!

The bar and NGO communities have to fight Garland’s assault on due process and good government with every available tool!

🇺🇸Due Process Forever!

PWS

00-02-22

🏴‍☠️CRISTIAN FARIAS @ VANITY FAIR: WHAT HAPPENS WHEN A MAJORITY OF A DEMOCRACY’S TOP JUDGES NO LONGER BELIEVE IN DEMOCRACY & ARE UNWILLING TO DEFEND IT?☠️

https://www.vanityfair.com/news/2022/08/post-roe-scotus-is-on-a-collision-course-with-democracy

After destabilizing the nation over abortion, and moving further right on guns, climate, and religion, the conservative justices’ sights are on affirmative action, voting rights, and a fringe legal theory that could empower Trump-friendly state legislatures for future elections.

BY CRISTIAN FARIAS

AUGUST 25, 2022

On the eve of his retirement, the nation’s first Black justice and constitutional giant, Thurgood Marshall, took a moment to denounce the Supreme Court of the United States over its “radical” path of abandoning past decisions for no other reason than the court’s membership had changed. Owing to these shifts in personnel, Marshall charged, now “scores of established constitutional liberties” hung in the balance, the powerless were left defenseless, and the court’s own authority and legitimacy were diminished. “Power, not reason, is the new currency of this Court’s decisionmaking,” Marshall warned in 1991, in what turned out to be his final dissenting opinion.

The dissenting justices in Dobbs v. Jackson Women’s Health Organization, the watershed case that discarded nearly 50 years of American jurisprudence protecting a woman’s right to terminate a pregnancy, felt the need to quote from Marshall’s decades-old warning because power, indeed, is the only sensible explanation for the Supreme Court’s present course. The seismic end of Roe v. Wade and Planned Parenthood v. Casey, two pillars of a much larger structure of unenumerated constitutional rights the high court has erected over almost a century, was neither legally necessary nor a product of profound changes in American society. Instead, five justices tore these precedents off the law books, ushering in a new era of abortion criminalization and second-class citizenship for half the nation, simply because they could—and had the numbers to do so. “Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did,” wrote Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in their anguished Dobbs dissent. “All that has changed is this Court.”

As radical and destabilizing as the fall of Roe is for our most intimate personal decisions, beyond just abortion rights, its ripples will extend to other areas where the conservative justices are already smelling blood. Not satisfied with the erasure of just one constitutional right, Clarence Thomas, writing separately in Dobbs, indicated that contraception and same-sex marriage could be next. That future begins now. These actions and other signals make abundantly clear what Marshall foresaw: The Supreme Court is on a collision course with democracy itself. Dobbs merely sets the stage.

Every new justice creates a new court, the maxim goes. Yet for much of their time on the bench, Justice Samuel Alito, long a soldier in the Republican holy war to curtail abortion rights, and Thomas, an avowed Roe antagonist, had the will but not the votes to impose their antiabortion vision on the majority of the Supreme Court, much less on the rest of the country. Their fortunes, and power, changed with the election of Donald Trump, whose own marriage of convenience with white evangelicals and social conservatives paved the way for his presidency and the installation of three new justices of a different mold, all of them more extreme and lacking the moderation of Republican appointees of the past, including those who made Roe and Casey possible.

Next to this “restless and newly constituted Court,” as Sotomayor branded this new majority in June, Chief Justice John Roberts looks as weakened as ever. The Supreme Court may bear his name, and the chief may have come of age during the abortion wars of the 1980s and ’90s, but neither his title nor institutionalist bent could convince the reactionaries to his right that their power grab in Dobbs represented “a serious jolt to the legal system” that he simply could not join in full. Too much, too soon. To the Trump justices, plus Thomas and Alito, this shock to the nation could not come soon enough.

Nominated by a president who lost the popular vote and narrowly confirmed by a Senate plagued by minority rule, these justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were all groomed for this moment. All of them were grown in the test tube of the Federalist Society, the conservative legal brain trust that for decades has been a judicial pipeline for Republican administrations and state governments, which since the time of Ronald Reagan have made the fall of Roe a white whale of their politics.

. . . .

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Read the rest of the article at the link.

Cristian creates an interesting vignette. The Justices take a few minutes to gather to welcome Justice Ketanji Brown Jackson to the Court. Then, the Right Wing Majority goes to work ignoring her views, insuring her marginalization, and pushing a minority agenda drawing into question her very existence as a person under law.

The conclusion of the article is perhaps most illustrative of the uncertain future of democracy, human rights, equal justice, and indeed basic human decency:

“Women are not without electoral or political power,” wrote without irony the five justices who ended their right to be full and equal citizens before the law in Dobbs. In asserting power rather than reason over what remains of our less than perfect union, the Supreme Court may well unravel democracy with it, taking us down a path from which there is no return.

Quite an achievement for a Court now dominated by those appointed by Presidents whose election (initial or sole) contravened the will of the majority of voters.

“Better Judges for a Better America!” Why not start with your “wholly owned and operated” Immigration Courts, Merrick Garland?

🇺🇸Due Process Forever!

PWS

08-29-22

More from today’s WashPost on the threat to our democracy posed by the anti-democracy, scofflaw GOP and their right wing judges:

William Webster and William Cohen on how today’s MAGA-infested GOP has become a cult of the lawless: https://www.washingtonpost.com/opinions/2022/08/26/mar-a-lago-fbi-attacks-lawless-gop/

E.J. Dionne on how the “off the rails, far right” GOP Supremes’ majority threatens humanity’s future with their anti-scientific, anti-government, anti-truth far right agenda: https://www.washingtonpost.com/opinions/2022/08/28/west-virginia-epa-inflation-reduction-act/

Jennifer Rubin on how one distinguished Senior U.S. District Judge, a Clinton appointee, stood up to the GOP’s anti-abortion overreach: https://www.washingtonpost.com/opinions/2022/08/28/federal-judge-pushback-idaho-abortion-ban/

😰IMMIGRATION 101: SUMMER GRADES POSTED: GARLAND, BIA, & OIL GET “F’s” FROM 1ST (FRENTESCU TEST) & 3RD (CATEGORICAL TEST) CIRS! — Meanwhile, NDPA Litigators Get “A+’s”

Dunce Cap — With lives on the line, the BIA’s performance leaves something to be desired.
PHOTO: Creative Commons

From Dor v. Garland, 1st Cir.

http://media.ca1.uscourts.gov/pdf.opinions/20-1694P-01A.pdf

Given our familiarity with the record at this point, we are prompted to note that it is not at all apparent to us how an application of the Frentescu factors to Dor’s case would lead to a particularly-serious-crime determination. For instance, consider again the June 1 incident — the BIA relied on a police officer’s assessment that Dor had a “large amount” of marijuana on him, but this on-the-scene appraisal by an officer is largely irrelevant to an immigration-law-driven determination that a crime is particularly serious pursuant to the guiding statutes, especially when the actual amount (25 grams, a small amount) is available. See Matter of Castro Rodriguez, 25 I. & N. at 703; Moncrieffe, 569 U.S. at 194 n.7. Consider, too, that while the BIA identified the type of sentence imposed as a Frentescu factor but never mentioned (or weighed) Dor’s sentences, we observe that

– 23 –

Dor received lenient sentences with respect to both offenses (a two-year probation and a one-year suspended sentence that never went into effect since Dor completed a violation-free probation period).

As to Dor’s involvement in trafficking as part of the calculus here, based on the amount in question, and again on the face of this record, this characterization seems ambitious. The May 20 offense officers observed Dor sell “20 bucks[‘ worth]” of marijuana to another individual; the June 1 incident revealed Dor had in his possession a digital scale, a large amount of U.S. currency, and 25 grams of marijuana.

Bottom line: The BIA’s particularly-serious-crime conclusion is devoid of any actual application of the Frentescu factors, and even if we considered it a solid application of the law to Dor’s case, we still do not have a sufficiently rational explanation of the BIA’s particularly-serious-crime conclusion as to Dor’s minor marijuana offenses, and a rational explanation is necessary to ensure Dor was appropriately precluded from obtaining the humanitarian relief he seeks.

DEAN’S LIST: A+‘s go to :

Edward Crane, with whom Philip L. Torrey, Crimmigration Clinic, Harvard Law School, Shaiba Rather, Lena Melillo, and Katie Quigley, Law Student Advocates, Crimmigration Clinic, Harvard Law School, were on brief, for petitioner.

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From Vurimindi v. AG, 3rd Cir.

https://www2.ca3.uscourts.gov/opinarch/191848p.pdf

In sum, the Government has identified no evidence that supports divisibility. The statute, the case law, and the available state court documents all support the opposite conclusion.11 Because Pennsylvania’s stalking statute is indivisible as to intent, we apply the categorical approach. And under the categorical approach, Section 2709.1(a)(1), which sweeps more broadly than its generic counterpart in the INA, is not a categorical match. Vurimindi’s offense of conviction therefore does not qualify as a removable offense.

DEAN’S LIST: A+‘s go to DLA Piper’s:

Courtney Gilligan Saleski

https://www.dlapiper.com/en/us/people/s/saleski-courtney-gilligan/

and

Rachel A.H. Horton

https://www.dlapiper.com/en/us/people/h/horton-rachel/

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Interestingly, the BIA’s defective decision in Dor involved improper reliance on police reports. This comes just as a new NIJC report shows how improper reliance by EOIR on police reports means that “racism and inequities in the criminal legal system and policing carry over into the immigration system.” https://default.salsalabs.org/T59538212-844f-4d6d-ade1-0428b5eef400/e9c83407-de3b-4bcf-a318-704cbcd599a2.

The Dor case also presents a familiarly outrageous characteristic of American immigration policy — still going strong in the era of Biden, Harris, and Garland — “Dred Scottification” — that is systemic injustice — directed at Black Haitian refugees. Indeed, Dor is lucky to be in the “system” at all — no matter how biased and poorly functioning. Following in the footsteps of the overtly racist and xenophobic Trump Administration, under Biden more than 25,000 potential Haitian refugees have been arbitrarily returned under Title 42 with no process at all — not even the “veneer of due process” provided by EOIR! See https://www.wola.org/2022/05/weekly-u-s-mexico-border-update-title-42-ruling-family-self-separations-more-drownings-haiti-expulsion-flights/.

The cases described above have been pending for three and six years, respectively. EOIR presents the worst of both worlds: lengthy delays and backlogs without due process and careful expert consideration of the issues involved. Injustice at a high cost, in more ways than one!

After trips to three levels of our broken immigration justice system, countless hours of legal time, and untold trauma and uncertainty for the individuals subjected to this dysfunctional system, these cases remain far from final resolutions. Now they go back into Garland’s incredible nearly two million case backlog!

Sometimes, the BIA uses this as an opportunity to invent a new “bogus theory of denial.” Other times, the files get lost or reassigned. In other words, they are subject to EOIR’s “specialty:” “Aimless Docket Reshuffling!”

Garland doesn’t lose any sleep over it because: 1) not his life on hold, 2) not his time and money being wasted, and 3) he isn’t paying attention! This is unacceptable public service! Plain and simple! And, there appear to be few, if any, real consequences for anybody except the individuals whose lives and futures are at stake and their (often pro bono) lawyers!

How completely “out of touch” is Garland? He has put bogus, “Mickey Mouse” time limits on new asylum adjudications. Doing incompetent and biased adjudications faster isn’t going to solve the problem. It will actually make backlogs worse and more importantly, increase the number of defective asylum denials — already at beyond unacceptable levels.

You can’t fix a broken system by making it “pedal faster!” Why, after all these years, Garland doesn’t understand that “fundamental rule of Goverment bureaucracy” is totally beyond me!

The obvious solution: Put emphasis on getting these cases right at the first instance. That means “canning” the “anti-immigrant default and assembly line process” and getting expert IJs willing to rule in favor of individuals where appropriate and a revamped BIA of expert judges willing to issue precedents favorable to individuals and insure that IJs properly follow them. It also means a BIA who will follow precedent even where it doesn’t produce a “DHS Enforcement-friendly result.”

Additionally, “lose” OIL’s often-dilatory or quasi-frivolous arguments designed to cover up EOIR failures and block justice! (HINT: The Assistant AG, Civil, one of the key sub-cabinet positions at DOJ, and OIL’s “boss,” remains unfilled approaching the halfway point of the Biden Administration.) This system is broken from top to bottom, including the litigation “strategy” that attempts to shield unfair and legally incorrect EOIR decisions from critical substantive review by Article III judges independent from the Executive.

Yes, Garland recently has “pruned” some of the deadwood at EOIR and brought in a few widely-respected expert “real judges.” That’s some progress.

But, he’s barely scratched the surface of the anti-immigrant culture, “haste makes waste” atmosphere, and shoddy decision making at EOIR and the poorly conceived litigation strategies at OIL! In particular, the dysfunctional DOJ immigration bureaucracy glaringly lacks inspired progressive due-process-committed, human-rights-focused, racial-justice-sensitive leadership willing to stand up for individual rights against Government overreach and abuses!

Of course, the “real” solution is to get the Immigration Courts out of DOJ and into an independent Article I structure. But, unfortunately, that isn’t going to happen tomorrow.

In the meantime, there is plenty that Garland could be doing to improve due process and professionalism and to “pave the way” for the eventual transition to Article I. The more dysfunctional Garland makes his system the more difficult and rocky that transition will be.

Garland isn’t getting the job done! Everyone who cares about the future of our nation and the rule of law should be asking why and demanding better from Garland and his “asleep at the switch” lieutenants!

High-powered lawyers like Courtney Saleski, National Co-Chair of DLA’s White Collar Practice, who successfully litigated Vurimindi in the 3rd Circuit have some “juice.” They need to team up with the ABA, FBA, AILA, ACLU, Human Rights First, NIJC, the NAACP, Catholic Conference, HIAS, and other human rights and civil rights groups and “camp on Garland’s doorstep” until he “pulls the plug” on his dysfunctional, unprofessional EOIR and brings in due-process-focused competence! How many resources and human lives can our nation afford to waste on Garland’s EOIR disgrace?

Alfred E. Neumann

Individuals whose lives are subject to systemic injustice and their hard-working, often pro bono, attorneys might “dissent” from Garland’s dilatory approach to long overdue due process reforms and key personnel changes in his stunningly dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

08-24-22

🇺🇸⚖️🗽AN AMERICAN LEGAL HERO LEAVES BEHIND LEGACY OF COURAGE, SCHOLARSHIP, INNOVATION, COMPASSION: A HEARTFELT TRIBUTE TO HON. WILLIAM VAN WYKE BY HON. “SIR JEFFREY” CHASE!

Judge William Van Wyke (D – Aug. 14, 2022)
U.S. Immigration Judge (Ret.)
Member Round Table of Former Immigration Judges
“A True Due Process Visionary”
PHOTO: the world.com

https://www.jeffreyschase.com/blog/2022/8/22/william-van-wyke-2

William Van Wyke

On August 14, the immigration law community lost a true giant. William Van Wyke, a former Immigration Judge, advocate, and scholar unexpectedly passed away.

How does one capture William’s essence? I’m going to attempt to do so through his own words (in bold), taken from both public sources and emails he wrote to his former Immigration Judge colleagues in conversations after his retirement from the bench.

“The fearful and crude ideas get put into practice by reflex; compassionate and thoughtful ones wait around until everyone agrees with them. – William” – April 1, 2021 email.

My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

Prior to authoring that article, WIlliam had spent nine years pioneering the representation of Central American refugees before the Immigration Courts in Washington and Baltimore, beginning this work when the 1980 Refugee Act was still new.

“’We have a law that was intended to be generous, that, when it is well understood, would cover many cases — many, many more cases — than those that are granted,’ Van Wyke says.” – Quote in Eyder Peralta, “Why A Single Question Decides The Fates Of Central American Migrants,” NPR, Feb. 25, 2016.

In one 1990 case in which his clients were denied asylum, William succeeded in persuading the Immigration Judge to rule that those clients could not be deported to their native El Salvador as long as the civil war continued there. William achieved this result by arguing customary international law, and analogizing a refugee’s flight from war to the customary practice of allowing a ship in distress the right to enter a port without authorization. The Washington Post quoted an immigration law authority who called the decision “one of the most impressive victories ever in an immigration court.” The decision was the subject of a law review article the following year.3

“My own experience is that people with anti-immigrant sentiments, whether in INS, DHS, EOIR or anywhere else, have always cringed at the idea of an IJ giving an unrepresented person sufficient information to make genuinely informed decisions… I remember a talk by Janet Reno at one of our conferences 20 years ago when she mentioned ‘compassion’ 12 times — I counted them. But try to actually be compassionate in specific cases in a legally appropriate and consequential way and you’re accused of overstepping judicial bounds. Didn’t I know that compassion is supposed to be a decoration, not something that actually helps the people before us?” – Email, Sept. 18, 2019

William’s appointment as an Immigration Judge in March, 1995 sent a message of hope to the immigration law community. On the bench, William maintained his methodical, detail-oriented approach. Early in his career on the bench, William reported that the INS trial attorneys had given him the nickname “the Van Wyck Expressway,” a reference to the similarly named NYC roadway that most know from traveling to or from JFK Airport. When William pointed out to one of those INS attorneys that his courtroom actually moved quite slowly, the attorney responded: “So does the Van Wyck Expressway.”

While we were both on the bench, I heard that William had developed a highly unique seating plan for his courtroom, and asked him about it one day. He showed it to me, explaining in detail his deeply thought out reasoning for the placement of every chair in the room. I don’t remember the specifics so many years later, but it was a perfect example of the strong sense of responsibility WIlliam felt towards all who set foot in his courtroom.

That sense of responsibility became even more heightened when WIlliam transferred from the court in New York to what he used to call “plain old York,” meaning the detained immigration court in York, Pennsylvania, located inside of the York County Prison.4

In one case he heard there, a non-citizen sat in jail awaiting approval of a green card petition filed by his U.S. citizen wife that could have saved him from deportation. But approval of visa petitions is not something an immigration judge can do; that power lies with the same government agency that was seeking the non-citizen’s deportation (at the time, that was INS; it is now DHS). After continuing the case multiple times to allow for a decision on the visa petition, WIlliam was repeatedly informed by INS’s attorney that no action had been taken. The INS attorney further refused to inquire as to when a decision might be expected, and insisted that rather than wait, the non-citizen should be ordered deported.

Although at the time such action required the consent of both parties, WIlliam took the bold step of administratively closing the case over the government’s objection, writing a detailed decision explaining the necessity of doing so under the facts presented.

Remarkably, rather than appeal William’s denial to the Board of Immigration Appeals, the INS attorney privately and most improperly contacted the Chief Immigration Judge by phone, who in turn improperly reopened the matter and placed it back on for hearing.

In a decision that should be required reading for all EOIR management, WIlliam fired back at both INS and his own higher-ups, stating that it would be a “manifest injustice” to deport the respondent “simply because INS has not performed its Congressionally-mandated adjudication in a timely fashion.”

Detailing the extensive efforts he had undertaken to get INS to adjudicate the visa petition, WIlliam further noted that “[t]he asymmetry of ordering one party, but asking, begging, pleading and cajoling the other party hearing after hearing without effect, can only diminish the court as an authoritative and independent arbiter in the public’s eyes.”

WIlliam took the INS and the Office of the Chief Immigration Judge to task for their unethical ex parte communication, and the latter’s unauthorized action in response to such conversation:

The Chief Immigration Judge is an administrative and policy officer without appellate or other legal authority to overrule the immigration judge’s procedural decisions in the case, see 8 CFR 3.9, 3.1(b), and ethical rules require the Chief Immigration Judge as well as immigration judges to refrain from taking action in a specific case following an ex parte communication about the case by one of the parties.

William further noted that his “decision to close the case temporarily was not a mere administrative one subject to OCIJ’s general direction, but a legal decision made as an integral part of the adjudicatory process in an individual case.” William cautioned that the private communication, which denied opposing counsel the right to be heard, protected INS from having to defend its position in an appeal to the BIA, thus giving

a procedural and tactical advantage to the INS by demonstrating to respondent, rightly or wrongly, that an INS call to the Office of the Chief Immigration Judge may be enough to undo what the immigration judge does in open court, while encouraging the INS to continue to seek results from the OCIJ privately that it might not be able to get from the BIA publicly.

William concluded:

Unable to establish or enforce the standards of conduct that this judge believes must apply, he will recuse himself from further consideration of the case. In the court’s view, only the OCIJ, which went beyond mere administrative action to direct a particular course of action in this case, is in a position to cure the appearance of impropriety its intervention has produced. The court will therefore refer this case back to the Chief Immigration Judge for whatever action he may deem fit and appropriate.

The extraordinary nature of the matter was reported in an article in the New York Times.5

In retirement, William was a member of our Round Table that filed an amicus brief in an important case in the U.S. Court of Appeals for the Second Circuit, Velasco-Lopez v. Decker. The case challenged the practice of requiring a detained non-citizen to themself prove that they would not pose a flight risk or danger to the community in order to warrant their release from detention. In its precedent decision, the circuit court agreed that such burden should be borne by the government, and not the detainee.

I share here part of William’s response to the decision

In this decision, the important starting point is that due process applies to every person in their relation to the power of government. This principle humanizes immigrant “others” and shows that when Big Government (i.e. the kind that wields power in favor of the already rich and already powerful) treads on anyone, everyone’s rights are in jeopardy. The principles relevant in bond decisions –– having ties to our communities and not being a danger to others –– are strong values that most of us honor and share, whether recent immigrants or earlier-generation immigrants, and should make all of us resist limitations on our freedom by the coercive power of jailing people.

I don’t know if they still staple those little yellow cards with red print onto files of jailed immigrants that used to say, “RUSH: detained at government expense.” Years ago when I was at York I wrote to… EOIR General Counsel, to ask if we couldn’t change those cards to be more humane, to say, “RUSH: person deprived of liberty,” or at least more neutral: “person deprived of liberty at government expense.” A change, of course, was “unnecessary” because everyone already knew the immigrants’ hardship, even if our boss’s reminder focused only on the government’s. Maybe they’ll change the cards now to remind adjudicators: “Rush: this person should not be deprived of freedom unless the government quickly decides he/she lacks any community ties AND is dangerous.” I won’t hold my breath, though.

I will conclude by saying that just recently, I set about researching a narrow legal issue that I would imagine most Immigration Judges would resolve in a few pages at most. I came across a decision that William had written on the topic shortly before his retirement from the bench that was exactly what I was looking for. It was 39 pages single spaced, and of course, absolutely brilliant.

On behalf of your fellow judges, and of all who have appeared in Immigration Court, thank you, William, for being you, for never lowering your standards. You restored the hope of so many in the power of law to make a positive difference in people’s lives, and so often showed that there was a way forward when we thought there was none. You are already greatly missed.

Notes:

William Van Wyke, “A New Perspective on Well-Founded Fear,” 1992-93 Immigration & Nationality Handbook(AILA, 1992) at 497.

Carlos Sanchez, “Lawyer’s Persistence Helps Reshape Immigration Law,” Washington Post, March 31, 1991.

Cookson, II, Charles W. “In Re Santos: Extending the Right of Non-Return to Refugees of Civil Wars.” American University International Law Review 7, no. 1 (1991): 145-171.

The York Immigration Court was closed on July 31, 2021.

Eric Schmitt, “Two Judges Do Battle in an Immigration Case,” NYT, June 21, 2001.

978 F.3d 842 (2d Cir. 2020). The author recognized the outstanding representation in this matter by the petitioner’s counsel, Julie Dona (who argued the case) and Aadhithi Padmanabhan of the Legal Aid Society, and to Souvik Saha of Wilmer Hale for his remarkable assistance in drafting our amicus brief.

AUGUST 22, 2022

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Can Keathley Be Applied More Broadly?

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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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

My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

. . . .

William spent those years trying to persuade the government of the proper application of the new law. However, INS and the newly created EOIR remained largely mired in the Cold War-influenced view of asylum that preceded the 1980 changes. And under that Cold War approach, Central Americans fleeing pro-U.S. regimes had nearly no chance to obtain asylum

A 1991 Washington Post article documented how this institutional resistance only caused William to be more persistent and creative in his legal approach.2

Kind of says it all about the entrenched, continuing, institutional resistance at EOIR to correct, generous, fair, practical interpretations of asylum law and other immigration and human rights laws! That’s what helps generate uncontrollable backlogs and brings our entire justice system into disrepute! Worst of all, it threatens the lives of those denied justice by its legal misinterpretations and mis-applications of the law!

What does it say about an institution that no longer touts or actively pursues its noble one-time-vision of “through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all?” Ironically, William’s life and achievements embody that now-defunct “EOIR vision.” But, nobody in “management” actually acknowledged that during his often-difficult tenure there.

Encouragingly, a number of Garland’s recent judicial appointments are distinguished, expert, widely respected “practical scholars” in the “Van Wyke mold.” Unfortunately, it’s going to take immediate and dramatic changes in moribund, uninspired EOIR leadership and in the “any reason to deny” BIA to overcome the “Cold War mentality,” anti-immigrant bias, assembly line procedures, “institutionalized go along to get alongism,” and unacceptably poor performance of EOIR. Right now, it’s still drag on our entire justice system that puts the future of our nation at risk!

No wonder we already miss William, his outspoken courage, and his wisdom so much. There is a void in our justice system right now where fierce due-process-focused, creative, humane, practical scholars should be leading the way in our institutions of justice!

It’s up to the “new generation” of the NDPA to break down the walls of official resistance by Garland and other short-sighted bureaucrats and politicos who lack the vision to make racial justice, immigrant justice, and equal justice for all realities rather than disingenuous unfulfilled rhetoric! Guys, your lives and those of your descendants might depend on it! So, dial up the pressure on the intransigents, many of them in the Biden Administration you helped to elect and who expect your support and votes again this Fall!

🇺🇸 Due Process Forever!

PWS

08-24-22

🤯 AS EOIR SINKS INTO THE SEA OF CHAOS & INJUSTICE, GARLAND’S SOLUTION: MORE UNNEEDED BUREAUCRACY!

Hole in the head — This is how much EOIR and its long-suffering stakeholders need a “Chief of the Immigration Law Division” at EOIR!
PHOTO: EOI Teacher @ Twitter

https://www.justice.gov/legal-careers/job/supervisory-attorney-advisor-chief-immigration-law-division

Duties include but are not limited to the following:

Plan and direct general legal activities of the Agency with the objective of assuring that all actions taken are in accordance with law and regulation with special emphasis on assuring that actions taken conform to the basic principles of law.

Provide interpretation of immigration provisions, laws, and regulations to all segments of the agency.

Propose the development of policies and procedures in response to legal cases or problems that have the effect of substantially broadening or restricting the activities of the agency.

Advise the Director/Deputy and staff on the legal implications of proposed and newly enacted laws, regulations and policies that will have an impact on the operation of the agency and keeps abreast of current decisions of the courts.

Direct professional legal staff in the development, documentation, and operation of both internal processes and administrative/technical controls.

Supervise staff in the formulation and direction of proactive, time-sensitive services and/or guidance to EOIR components, unique needs of senior management and responsiveness to the Department and other government or regulatory agencies.

Qualifications:

In order to qualify for the position, you must meet the following minimum qualifications:

Education: Applicants must possess an LL.B. or a J.D. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)

AND

Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)

AND

Required Experience:

For GS-15: Applicants must have four (4) full years (48 months) of post J.D. or LL.B professional legal experience. Qualifying professional legal experience includes: Direct professional legal staff in the development, documentation, and operation of both internal processes and administrative/technical controls; Advise Senior Management and staff on the legal implications of proposed and newly enacted laws, regulations and policies that will have an impact on the operation of the agency and keeps abreast of current decisions of the courts; and Plan and direct general legal activities of the Agency with the objective of assuring that all actions taken are in accordance with law and regulation with special emphasis on assuring that actions taken conform to the basic principles of law.

(Your resume must CLEARLY demonstrate this experience)

Preferred Experience:

The ideal candidate will have experience with the following:

Providing technical and administrative supervision over attorneys and professional staff within an organization.

Planning and assigning work to subordinate attorneys based on priorities and difficulty of the assignment.

Providing input and advice to Senior Officials on policy decisions.

Coordinating with other government offices and/or agencies on legal matters.

NOTE: Qualifying experience is calculated only after receipt of J.D. or LL.B.

IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE.

Salary:

($148,484 – $176,300 per year.

Travel:

Occasional travel

Application Process:

To Apply for this position, please click the below link to access and apply to the vacancy announcement via USA Jobs USAJOBS – Job Announcement . Please read the announcement thoroughly. You Must Submit a complete application package by 11:59PM (EST) on 9/02/2022, the closing date of the announcement.

Applicants should familiarize themselves and comply with the relevant rules of professional conduct regarding any possible conflicts of interest in connection with their applications. In particular, please notify this Office if you currently represent clients or adjudicate matters in which this Office is involved and/or you have a family member who is representing clients or adjudicating matters in which this Office is involved so that we can evaluate any potential conflict of interest or disqualification issue that may need to be addressed under those circumstances.

Application Deadline:

Tuesday, September 6, 2022

Relocation Expenses:

Not authorized

Number of Positions:

1

Updated August 23, 2022

* * *

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

The ship is rudderless and sinking! Many of the sailors are inept or think they are working for a different Navy! The solution: More Lt. Commanders on deck, each doing someone else’s job and giving random orders, to add to the confusion and disorder!

Let me be clear: EOIR and its long-suffering “customers” and “stakeholders” need this superfluous position like a hole in the head! Perhaps less! This looks like “EOIR imitating the DHS bureaucracy” that it is supposed to be treating as a “party,” not a “role model!”

The “Office of Policy” — totally unnecessary and inconsistent with the mission of a quasi-judicial court system — is a serious boondoggle created by the last Administration. Eliminating it and redeploying its wasted resources into competent, expert quasi-judicial decision making should have been “Day One Stuff” for Garland. But it wasn’t!

EOIR needs better, expert judges, who know immigration and human rights laws, and are unswervingly committed to due process, fundamental fairness, and best practices! It also needs a “lean team” of well qualified judicial administrators to recruit, hire, train, and support judges and court staff!

Incredibly, most of this PD sounds like it’s right out of the PDs for BIA Chair, BIA Member, CIJ, Director, Deputy Director, or General Counsel. Get folks who can do those jobs and eliminate the Office of Policy and the other “non-operational bureaucratic fat” in Falls Church!

Does the Supreme Court have a “U.S. Law Division?” How about the D.C. Circuit where Garland once served? What on earth is Garland doing with this wasteful nonsense!

For Pete’s sake, the BIA IS the “Immigration Law Division!” If, as I maintain, most of the current Appellate Judges are not capable of performing those functions competently and in accordance with due process and fundamental fairness, then get better judges in there! Now!

Sure, it’s not the “popular solution” within the self-perpetuating bureaucracy. But, it’s the right one!

Stop the unnecessary proliferation of inept bureaucrats at EOIR! “Hey, hey, Ho, ho, the EOIR Clown Show has got to go!” Throwing more “ringmasters” into this circus is NOT the answer!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

DOJ and Director Neal should be hauled before an Oversight Committee to justify their continuing bureaucratic nonsense in the face of abject “mission failure!” Not going to happen. But, it should! Honestly!

🇺🇸 Due Process Forever!

PWS

08-24-22

💨 FROM THE ROCKIES & THE HIGH PLAINS, THE WINDS OF TRUTH BLOW AWAY THE BS & SHOW HOW GARLAND’S BIA & THEIR SCOFFLAW INTERPRETATIONS HAVE BUILT BACKLOGS — “This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in,” says 10th Cir. in Estrada-Corona v. Garland!

Kangaroos — It’s easy guys, we just do what DHS Enforcement and our political bosses want and we can keep hopping around forever! Backlogs! Ha, the bigger the bigger they get, the more “secure” our jobs!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

Estrada-Cardona v. Garland

“The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. … This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in. … After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong. … Because Congress unambiguously replaced the final-order rule with the stop-time rule, the BIA’s application of the final-order rule was legal error. Petitioner continued to accrue continuous physical presence after the immigration judge issued the order to voluntarily depart. … [W]e hold that because the BIA seems to have considered change-in-the-law equitable tolling arguments before, the BIA abused its discretion in this case by failing to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” … We cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion. … On remand, the Government is free to argue that Petitioner should not be granted sua sponte reopening or equitable tolling. This opinion is expressly limited to two conclusions. First, the BIA’s application of the final-order rule was legal error. Second, the BIA’s explanations for denying sua sponte reopening and equitable tolling constituted, as a procedural matter, an abuse of discretion. For the reasons stated herein, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion.”

[Hats way off to Jennifer M. Smith and Mark Barr!]

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

“For years, if not decades, the Government sent aliens “notices to appear” which failed to include all the information required by § 1229(a)—like the “time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). For countless aliens, the only obstacle to being eligible for cancellation of removal was the Government’s position that a time-and-place-to-be-set notice to appear still triggers the stop-time rule. In Pereira, the Supreme Court rejected the Government’s atextual interpretation and held a “putative notice to appear that fails to designate the specific time or place of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. In one fell swoop, the Supreme Court cleared the way for many aliens, like Petitioner, to seek cancellation of removal.

But the Government quickly erected a new hurdle.”

The BIA could and should have prevented this debacle by insisting from the git go that the statute (“the law”) be followed by DHS and EOIR. Instead, at the behest of DHS, and perhaps to prevent tens of thousands of long-term residents who had received statutorily defective notices from seeking relief, the BIA misinterpreted the statute time after time.

The real stupidity here is that the requirement the BIA was pretzeling itself to avoid was hardly “rocket science” or burdensome: Serve a notice containing the actual date, time, and place of the hearing! One might ask what purpose is served by a so-called “Notice to Appear” that doesn’t notify the individual of where and when to appear?

Moreover, when the BIA started issuing their incorrect precedents, DHS and EOIR had a then-existing system — called “interactive scheduling” — that would have complied with the statute. The problem was that the “powers that be” at DOJ, EOIR, and DHS consciously decided NOT to use that system.

The apparent reason was the belief that complying with the law might have interfered with DHS arbitrarily filling the Immigration Courts with large “numbers” of cases to meet various enforcement “priorities” set from “on high.” Rather than doing its job, the BIA chose time and again to “go along to get along” with this nonsense!

Over and over, EOIR lets bogus DHS or Administration “enforcement priorities” or “improperly using the legal system as a deterrent” subvert due process, fundamental fairness, best interpretations, and practical solutions!

And, although Biden and Harris campaigned on a platform of bringing the rule of law and rationality back to immigration, the absurdity and illegality continues under Garland. He even sent OIL in to waste the time of the Article IIIs by mounting essentially frivolous defenses to the BIA’s malfeasance.

Perhaps worst of all, in addition to being denied timely justice, individuals and their lawyers dealing with Garland’s dysfunctional EOIR often are falsely blamed for causing the backlogs that are the primary result of DHS/EOIR incompetence and political meddling by unqualified bureaucrats. The latter don’t understand what really happens in Immigration Court and how to properly, fairly, and efficiently administer such a large and important court system.

The backlogs will continue to grow and the US justice system will crater because of bad immigration decisions generating skyrocketing litigation. Garland must replace the BIA with real expert appellate judges committed to fair, humane, and reasonable interpretations of immigration and human rights laws — without regard to whether those correct interpretations will be “career enhancing” or “career preserving.” In other words, judges who put justice before personal or institutional “survival.” Competent, expert, independent-minded judicial administrators with the guts to keep DOJ and DHS bureaucratic meddlers “at arm’s length” are also required.

Folks who could do the job are out here. But, that’s the problem! They belong in the key judicial judicial and administrative positions at EOIR where they can put any end to the due-process denying, backlog building dysfunction.

Everyone committed to the future of American justice should be asking themselves why Garland hasn’t recruited and hired the right “Team Due Process” for EOIR! American justice can’t afford more of Garland’s inept, “go along to get along,” “afraid to say no to DHS enforcement” BIA and the rest of the EOIR “Deadly Clown Show” largely left over from past, failed Administrations!

🇺🇸 Due Process Forever!

PWS

08-20-21

⚖️ NDPA STALWART MICHAEL MEHR BEATS DOWN MATTER OF CORDERO-GARCIA (Obstruction of Justice) IN 9TH — Dissenting Trump Judge VanDyke Goes Ballistic — Accuses Colleagues Of “Playing Dirty” By Occasionally Ruling In Favor Of Individuals In Immigration Cases!

Here’s a report from Nate Raymond @ Reuters:

https://www.reuters.com/legal/government/trump-appointed-judge-says-9th-circuit-playing-dirty-prevent-deportations-2022-08-15/

(Reuters) – A conservative judge appointed by former President Donald Trump on Monday accused his colleagues on the 9th U.S. Circuit Court of Appeals of playing “dirty” in a “trainwreck” of rulings to prevent immigrants from being deported.

U.S. Circuit Judge Lawrence VanDyke’s criticism came in a dissent to a 2-1 decision holding a Mexican native’s California conviction for dissuading a witness from reporting a crime was not a deportable offense under federal immigration law.

VanDyke, who has become known for a string of dissents since joining the liberal-leaning court in 2020, noted he had not been shy in criticizing the San Francisco-based court’s “abysmal and indefensible immigration precedents.”

He said the 9th Circuit for more than a decade has been “doing everything in our power (and much not) to upset” the Board of Immigration Appeals’ “reasonable” interpretation of what constitutes an offense related to obstruction of justice.

The BIA in this case had concluded Fernando Cordero-Garcia committed such an offense after he was convicted in California of sexual battery without restraint, sexual exploitation by a psychotherapist and dissuading a witness from reporting a crime.

“My colleagues in the majority should be embarrassed,” VanDyke wrote. “Perhaps not for their wrong decision today–to err is human, after all, even for those in robes. But they should be troubled by our court’s jaw-dropping, always-increasing, epic collection of immigration gaffes.”Cordero-Garcia’s lawyer, Michael Mehr, declined to comment.

Cordero-Garcia, who entered the country in 1965 as a lawful permanent resident, was a psychologist for the County of Santa Barbara Alcohol, Drug and Mental Health Services department who prosecutors said sexually assaulted patients, the ruling said.

Two appointees of Democratic presidents — U.S. District Judge Barry Moskowitz, a visiting judge on the court, and U.S. Circuit Judge Andrew Hurwitz — ruled for Cordero-Garcia in overturning the BIA’s decision on the obstruction offense.

Moskowitz, writing for the majority, said he was not writing on a “clean slate,” as the 9th Circuit in 2020 ruled an “obstruction of justice” offense must be connected to ongoing or pending criminal proceedings.

The California law Cordero-Garcia was convicted under, by contrast, does not require any connection to an ongoing or pending proceeding or investigation, making it “not an appropriate comparator” to obstruction under federal law.

VanDyke, though, said the 9th Circuit’s approach had created a “lopsided circuit-split,” with the majority acknowledging its ruling ran counter to decisions by the 1st and 4th U.S. Circuit Courts of Appeals.

The case is Cordero-Garcia v. Garland, 9th U.S. Circuit Court of Appeals, No. 19-72779.

For Cordero-Garcia: Michael Mehr of Mehr & Soto

For the United States: Rebecca Hoffberg Phillips of the U.S. Department of Justice

Read more:

Trump-appointed judge blasts 9th Circuit’s ’embarrassing’ immigration rulings

In barbed dissents, Trump appointees call

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

Here’s a link to Matter of Garcia-Cordero, 27 I&N Dec. 652 (BIA 2019) which was reversed by the 9th Circuit:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwip-puUns75AhUlk4kEHaQXAisQFnoECAMQAw&url=https%3A%2F%2Fwww.justice.gov%2Feoir%2Fpage%2Ffile%2F1210991%2Fdownload&usg=AOvVaw2IVnTOUmhzqK0ppatf4rr7

While VanDyke has been eager to rip into his colleagues for critically reviewing BIA rulings, rather than just “rubber stamp deferring,” he is no stranger to controversy. He received the coveted “not qualified to serve” rating from the ABA and has been characterized as an “unqualified hack” by Joe Patrice over at abovethelaw.com. https://abovethelaw.com/2021/12/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents/.

Interestingly, a chunk of the dissent is dedicated to showing that Mr. Cordero-Garcia is a louse. However, that doesn’t seem to have much to do with the legal application of the “categorical test” to his crime in the immigration context. For all its difficulties, Congress was well aware that courts had historically applied the “categorical test” as opposed to the “sounds like a bad guy” approach when they enacted the statutory language in question.

Curiously, VanDyke castigates his majority colleagues for “result oriented” decision making. But it seems highly unlikely that either District Judge Barry Ted Moskowitz, who wrote the opinion, or Circuit Judge Andrew Hurwitz would have chosen Mr. Cordero-Garcia’s situation as one to “throw out a lifeline.”

What’s more likely is that they fairly applied controlling Circuit precedent notwithstanding the highly unsympathetic individual involved. By contrast, critics have characterized VanDyke as an ideologue — driven by a far-right agenda — whose main focus on the bench has been “writing vitriolic Town Hall editorials to publish in F.4th.” Id.

From a due process standpoint, one of the most severe problems undermining our entire justice system today is the disturbingly poor performance of the BIA which often functions as a “rubber stamp” on incorrect anti-immigrant decisions by Immigration Judges, many of them appointed during the Trump Administration with questionable credentials, at best. That’s when the BIA isn’t busy serving as a “shill” for DHS Enforcement — often bending the law or going out of their way to sustain ICE appeals from correct decisions below that grant relief or benefit individuals. BIA precedents favorable to asylum seekers and other migrants are few and far between — despite an obvious lack of immigration and human rights expertise among many Trump appointees to the immigration bench.

The problem is compounded when reviewing Circuit Courts ignore the glaring Constitutional conflict of having a “court” that is “owned” by an enforcement agency (and was blatantly “weaponized” against migrants by Sessions and Barr) and the poor quality decision making, lack of scholarship, and overt bias that plagues EOIR. “Rubber stamp deference” to BIA decisions that do not deserve it is a systemic problem for the Article IIIs, actively encouraged by the Supremes judge-created Chevron and Brand X doctrines of undue deference. From this perspective, VanDyke and many (not all) of his Trump colleagues are a big part of the problem — not the solution!

Michael K. Mehr ESQ!
Senior Partner
Mehr & Soto LLP
Santa Cruz, CA
PHOTO: Website

Many congrats to Michael Mehr for vigorously and successfully litigating this complex issue in the 9th Circuit. It’s telling to compare the “quiet competence” of dedicated, expert advocates like Mehr with the “bombastic grandstanding” of VanDyke and others in the xenophobic right. Mehr and others in the NDPA have honed their their advocacy and scholarship skills by decades of giving a “voice” to those who otherwise are seldom “heard” by the powers that be.

Undoubtedly, given the circuit split, this eventually will end up at the Supremes. There, VanDyke’s fellow Trump appointees could well agree with him. But, that might be more reflective of problems with the composition of today’s Supremes than with the law. Stay tuned!

🇺🇸Due Process Forever!

PWS

08-17-22

🔌👎🏽GARLAND MUST “PULL THE PLUG” ON HIS FAILED APPELLATE COURT — BIA “DEFIES” EVIDENCE TO MOCK DUE PROCESS & DENY ASYLUM, SAYS 3RD CIR! — OGEE v. AG (Ghana)

Read the 3rd Circuit’s (unfortunately) unpublished decision here:

https://www2.ca3.uscourts.gov/opinarch/202423np.pdf

Key quote:

The IJ credited Bimpong’s testimony, and the BIA did not disturb this finding. Yet the BIA concluded that Bimpong’s persecution was a personal land dispute that lacked any nexus to his membership in the Ashanti tribe. In doing so, the BIA deferred to the IJ’s conclusion that “the record is devoid of any evidence indicating that the [Enzema] Tribe targeted the applicant because of membership in the Ashanti Tribe.” AR 97 (emphasis added). That conclusion defies the record, which is replete with evidence that Bimpong’s tribal affiliation was a central reason for his persecution. See, e.g., AR 157, 162-63, 167–68, 185, 596, 598. For example, Bimpong testified that members of

the Enzema “did not want the land that [he] possessed to be owned by non-members of 4

the Enzema tribe,” AR 596, and that he “was a target of persecution because of [an] intertribal dispute between the Enzema tribe and Ashanti tribe.” AR 598.

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

Typical BIA BS prejudged, form denial “boilerplate.” “Devoid of evidence” — gimmie a break! We tried (obviously unsuccessfully) to eliminate this type of non-analytical nonsense several decades ago. It’s indicative of a totally broken system that is unfair and biased against migrants! Why is Garland allowing this continuing systemic injustice?

Demand that Garland replace his inept, unprofessional, unconstitutional, “Trump holdover” BIA with real judges who are experts in immigration, asylum, human rights, and fully committed to due process and fundamental fairness!

To quote my good friend and Round Table 🛡 colleague, Hon. “Sir Jeffrey” Chase:

At the IJ level, the ACIJs have to be charged with determining if the IJ actually doesn’t know the law, or if they are choosing not to follow it. Of course, you need ACIJs who actually know immigration law, which isn’t always the case anymore. If it’s the former, you schedule additional training; if it’s the latter, they may need to suspend or remove the IJ. That should be a priority for the next Chief IJ.

But why isn’t this being caught at the BIA level? They continue to act as a rubber stamp. There have been a few cases just in the past couple of weeks where the errors were really major and apparent.

A BIA that would “rubber stamp” denials without question or meaningful analysis so that OIL could then argue “deference” to railroad refugees and other individuals entitled to relief out of the country is precisely what Barr and Sessions intended to create. In other words, a “parody of justice” that would carry out the White Nationalist restrictionist agenda without giving it any thought. And, it’s no coincidence that this unconstitutional agenda falls hardest on the backs of asylum seekers and other migrants of color. It also serves to reinforce the vile concept that individuals of color in the U.S. are not equal under the law.

The real question here is why Garland hasn’t effectively changed the system by bringing in real judges who are experts in immigration and human rights and who would be fair to all coming before his Immigration Courts regardless of race or status? “Gradual change” is unacceptable when individuals (and their conscientious representatives) are being subjected to deadly quasi-judicial incompetence on a daily basis. Tell Garland you’ve had enough!

🇺🇸 Due Process Forever!

PWS

08-16-22

⚖️NDPA SUPERSTAR BEN WIN-OGRAD WINS A BIGGIE IN 4TH ON IJ CONDUCT — Tinoco Acevedo v. Garland

Dan Kowalski reports for LexisNexis Immigration Community!

CA4 on IJ Conduct: Tinoco Acevedo v. Garland

Tinoco Acevedo v. Garland

“Petitioner Rodolfo Josue Tinoco Acevedo appeals an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of removal. Because the BIA failed to address whether Tinoco Acevedo’s case should be remanded to a new immigration judge (“IJ”) under Matter of Y-S-L-C-, 26 I. & N. Dec. 688 (BIA 2015), we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand to the BIA for further proceedings consistent with this opinion. … Rather than opine as to the exact grounds on which the BIA decided that the applicant was entitled to a new hearing before a new IJ in Matter of Y-S-L-C-, we remand for the BIA to interpret its precedent and address Tinoco Acevedo’s argument in the first instance. … we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand for the BIA to consider whether Tinoco Acevedo is entitled to a new hearing before a different IJ because the initial IJ’s conduct—both during and following the hearing—failed to satisfy the high standard expected of IJs under Matter of Y-S-L-C-. PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.” [Note: The IJ was Roxanne C. Hladylowycz.]

[Hats off once again to IRAC superlitigator Ben Winograd!]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

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Free Daily Blog: www.bibdaily.com

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Yet another example of the BIA not being familiar with and applying their own precedents where they could be favorable to the respondent. Any old boilerplate BS will do as long is the result is “dismiss and remove.”

It’s one thing for the BIA to articulate “high standards” for IJ conduct in Matter of Y-S-L-C-. It’s quite another to consistently enforce them where the lives of migrants are at stake!

It was a particularly bad idea for the BIA to spring this haphazard “good enough for government work” approach when Ben Winograd is appellate counsel. Winograd knows the BIA and 4th Circuit precedents better than most BIA judges. And, unlike the latter, he’s willing to stand up for immigrants’ legal rights!

It would be better for Garland and American justice — not to mention those seeking justice in Immigration Court, too often in vain — if brilliant, due-process-oriented “practical scholars” like Ben Winograd replaced the “holdover BIA judges” who aren’t up to the job of “guaranteeing fairness and due process for all.” Remarkably, there was a time in the past when that long disregarded judicial essential was the “vision” of EOIR.

Ironically, the Article III Judges of this 4th Circuit panel (Chief Judge Gregory, Circuit Judges Motz and Wynn) understand the critical requirements for EOIR judging better than AG Garland! That’s a problem (although, concededly, outside the “World of EOIR” Garland has had his best week as AG)!

This opinion was written by Chief Judge Roger Gregory. He continues to be a leader among Article III Judges who take due process and immigrants’ rights seriously! He’s also someone who “gets” the clear connection between immigrant justice (or, in too many cases lack thereof) and racial justice.

With the Chief Immigration Judge position now vacant, Judge Garland has a golden opportunity to appoint a “Judge Gregory clone” to that critical position. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=30193&action=edit. That would also be a wise course for Garland to take to replace the current glaringly inadequate leadership at his failing BIA! How about Chief Appellate Immigration Judge/Chairman Ben Winograd?

🇺🇸 Due Process Forever!

PWS

08-13-22

⚖️👩🏽‍⚖️👨🏽‍⚖️🗽🗽🇺🇸 GARLAND’S LATEST IMMIGRATION JUDGE APPOINTMENTS SHOW QUALITY, DIVERSITY! — Noted “Practical Scholars” Hoffman, Racine, Haer Join The Bench As “Balance” Between Gov. & Private Sector Appointments Improves Significantly!

Here’s the list of the 19 newly appointed U.S. Immigration Judges: https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMjA4MDUuNjE4NDgwNTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9lb2lyL3BhZ2UvZmlsZS8xNTI0MzM2L2Rvd25sb2FkIn0.9Wv3WdIlGNb8WuNMytym1WmPC51-32QHaSCK76FgdYo/s/842922301/br/142150174324-l

NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy

5107 Leesburg Pike

Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov

www.justice.gov/eoir @DOJ_EOIR

Aug. 5, 2022

EOIR Announces 19 New Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of 19 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

EOIR continues to work to expand its immigration judge corps and welcomes qualified candidates from all backgrounds to join the agency. In addition to making a difference through service to our Nation, immigration judges join a diverse and inclusive workforce. Individuals interested in these critical positions are invited to sign up for job alerts that are sent when new opportunities become available.

After a thorough application process, Attorney General Merrick B. Garland appointed Tanisha L. Bowens-McCatty, Michael P. Davis, James T. Dehn, Julia E. Egy, Ashley Gadson-Andrews, Amy F. Haer, Robert J. Herrington, Geoffrey A. Hoffman, Maria L. Jaimes-Salgado, Christina M. Jimenez, Christopher M. Kozoll, Nicole A. Lane, Francis M. Mwangi, Alex D. Perez, Xavier F. Racine, Raphael G. Rojas, Marc B. Stahl, Michelle M. Venci, and Mary C. Vergona to their new positions.

Biographical information follows:

Tanisha L. Bowens-McCatty, Immigration Judge, Hyattsville Immigration Court

Tanisha L. Bowens-McCatty was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Bowens-McCatty earned a Bachelor of Arts in 1997 from the University of North Florida and a Juris Doctor in 2001 from the Florida State University College of Law. From 2013 to 2021, she worked for the American Bar Association’s Commission on Immigration in Washington, D.C., serving as the Associate Director (2013-2020) and the Director of Legal Initiatives and Member Engagement (2020-2021). From 2006 to 2011, she worked for the Catholic Legal Immigration Network Inc., in Washington, D.C., in the following roles: Senior Project Coordinator for the National Pro Bono Project for Children (2010-2011); Project Coordinator for the Raids Preparedness & Response Project (2008-2010); and Legalization Attorney (2006-2008). From 2004 to 2006, she was a supervising attorney for Catholic Charities Legal Services of the Archdiocese of Miami in Miami and in Fort Lauderdale, Florida, Broward County Satellite Office, and from 2003 to 2004 she worked as a staff attorney. From 2001 to

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 2

2003, she was a staff attorney with Americans for Immigrant Justice (formerly the Florida Immigrant Advocacy Center) in Miami. Judge Bowens-McCatty is a member of the Florida Bar.

Michael P. Davis, Immigration Judge, Sterling Immigration Court

Michael P. Davis was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Davis earned a Bachelor of Arts in 1997 from John Carroll University and a Juris Doctor in 2000 from the University of Illinois College of Law. From 2016 to 2022, he served as the Executive Deputy Principal Legal Advisor, U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security. From 2012 to 2016, he served as ICE Deputy Principal Legal Advisor for Enforcement and Litigation. From 2005 to 2012, held the following roles at ICE: Appellate Counsel (2005-2007); Deputy Chief (2007-2009); and Chief of the ICE Immigration Law and Practice Division (2009-2012). From 2003 to 2005, he served as Associate Counsel, Refugee and Asylum Law Division, U.S. Citizenship and Immigration Services, Department of Homeland Security. From 2000 to 2003, he served as an assistant district counsel with the former Immigration and Naturalization Service in Los Angeles, entering on duty through the Attorney General’s Honors Program. Judge Davis is a member of the State Bar of California.

James T. Dehn, Immigration Judge, Sterling Immigration Court

James T. Dehn was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Dehn earned a Bachelor of Arts in 1995 from George Mason University, a Master of Arts in 1998 from the Syracuse University Maxwell School of Citizenship and Public Affairs, and a Juris Doctor in 1998 from the Syracuse College of Law. From 2020 to 2022, he served as the Chief Appellate Counsel at U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in Washington, D.C. From 2019 to 2020, he served as an attorney advisor at the Office of Chief Counsel, U.S. Citizenship and Immigration Services, in Washington, D.C. From 2005 to 2019, he served as an attorney advisor at the Office of the Principal Legal Advisor, ICE, in Washington, D.C. Also, from 2007 to 2011, he served as a government appellate counsel, and from 2002 to 2006, as a trial defense counsel, in the U.S. Army Reserve, Judge Advocate General’s Corps, National Capital Region. From 2000 to 2005, he served as an attorney advisor at the Office of General Counsel, U.S. Department of Veterans Affairs, in Washington, D.C. From 1998 to 1999, he was an associate attorney at Whelan, DeMaio & Kiszkiel PA, in Miami. Judge Dehn is a member of the Maryland State Bar.

Julia E. Egy, Immigration Judge, Sterling Immigration Court

Julia E. Egy was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Egy earned a Bachelor of Journalism in 1997 from the University of Missouri-Columbia and a Juris Doctor in 2002 from American University Washington College of Law. From 2014 to 2022, she served as a senior panel attorney with the Board of Immigration Appeals (BIA), Executive Office for Immigration Review. From 2012 to 2014, she served as a supervisory attorney, and from 2004 to 2012, as an attorney advisor, with the BIA. From 2003 to 2004, she was in private practice. From 2002 to 2003, she served as a judicial law clerk for the Baltimore, Philadelphia, and York immigration courts. Judge Egy is a member of the Missouri Bar.

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 3

Ashley Gadson-Andrews, Immigration Judge, Los Angeles – Olive Street Immigration Court

Ashley Gadson-Andrews was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Gadson-Andrews earned a Bachelor of Science in 2008 from the University of Arizona – Eller College of Management and a Juris Doctor in 2011 from the University of Southern California Gould School of Law. From 2013 to 2022, she served as a deputy district attorney at the Los Angeles District Attorney’s Office. From 2012 to 2013, she was a trial attorney with the Los Angeles Dependency Lawyers at Edelman Children’s Court in Monterey Park, California. Judge Gadson-Andrews is a member of the State Bar of California.

Amy F. Haer, Immigration Judge, Atlanta – W. Peachtree Street Immigration Court

Amy F. Haer was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Haer earned a Bachelor of Science in 2003 from the Georgia Institute of Technology and a Juris Doctor in 2008 from the George Washington University Law School. From 2017 to 2022, she was the Director of Immigration Legal Services at Catholic Charities Atlanta. From 2015 to 2017, she was the Associate Director for Immigration and Refugee Services at Catholic Community Services – Tucson (CCS-T). From 2012 to 2015, she was the Program Director for the Immigrant Survivors Legal Assistance Program at CCS-T. From 2008 to 2012, she was a staff attorney with Catholic Charities Atlanta. Judge Haer is a member of the State Bar of Georgia.

Robert J. Herrington, Immigration Judge, Los Angeles – Olive Street Immigration Court

Robert J. Herrington was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Herrington earned a Bachelor of Arts in 1975 from the University of Southwestern Louisiana and a Juris Doctor in 1985 from the LSU Paul M. Hebert Law Center. From 2005 to 2022, he was a criminal defense lawyer in Plano, Texas. From 1998 to 2005, he served as an assistant federal public defender at the Office of the Federal Public Defender in Dallas. From 1996 to 1997, he was a general practitioner in Dallas. From 1991 to 1995, he served as a staff attorney at the Federal Deposit Insurance Corporation and then at the Resolution Trust Corporation. From 1988 to 1991, he served as a law clerk to the U.S Bankruptcy Court. From 1985 to 1988, he was an immigration lawyer in private practice. Judge Herrington is a member of the State Bar of Texas.

Geoffrey A. Hoffman, Immigration Judge, Houston – S. Gessner Road Immigration Court

Geoffrey A. Hoffman was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Hoffman earned a Bachelor of Arts in 1991 from Columbia College, Columbia University, a Juris Doctor in 1997 from Tulane Law School, and a Master of Laws in 2004 from Harvard Law School. From 2009 to 2022, he served as Director of the Immigration Clinic at the University of Houston Law Center. From 2004 to 2009, he practiced immigration law at Kurzban, Kurzban, Weinger, and Tetzeli PA in Miami. From 1998 to 2000, Judge Hoffman served as a judicial law clerk for the Honorable Paul V. Gadola U.S. District Court for the Eastern District of Michigan. Judge Hoffman is a member of the Florida Bar and the State Bar of Michigan.

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 4

Maria L. Jaimes-Salgado, Immigration Judge, Houston – Greenspoint Park Immigration Court

Maria L. Jaimes-Salgado was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Jaimes-Salgado earned a Bachelor of Science in 2006 from the University of Houston-Downtown and a Juris Doctor in 2009 from Texas South University Thurgood Marshall School of Law. From 2021 to 2022, she was an associate attorney with the Law Office of Velia E. Rosas PLLC in Houston. From 2019 to 2022, she was in private practice in Houston. From 2012 to 2019, she was managing attorney, and from 2009 to 2012, she was an associate attorney, at the Law Office of Isaias Torres PC in Houston. Judge Jaimes-Salgado is a member of the State Bar of Texas.

Christina M. Jimenez, Immigration Judge, Arlington Immigration Court

Christina M. Jimenez was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Jimenez earned a Bachelor of Arts in 1997 from the University of Washington and a Juris Doctor in 2001 from Boston University. From 2002 to 2022, she served as an attorney and a trial judge with the U.S. Air Force in the following locations: Royal Air Force Lakenheath, United Kingdom; Kunsan Air Base, Republic of Korea; Kadena Air Base, Japan; Bolling Air Force Base, Washington, D.C.; Osan Air Base, Republic of Korea; Lajes Field, Azores, Portugal; Joint Base Andrews, Maryland; and Travis Air Force Base, California. In 2022, she retired as a colonel from the U.S. Air Force, having last served as the Chief Circuit Military Judge for the Western Circuit. Judge Jimenez is a member of the Massachusetts Bar.

Chris M. Kozoll, Immigration Judge, Memphis Immigration Court

Chris M. Kozoll was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Kozoll earned a Bachelor of Arts in 1993 from the University of Notre Dame, a Master of Arts in 2000 from Gonzaga University, and a Juris Doctor in 2004 from the University of Colorado School of Law. From 2010 to 2022, he was a partner at Kozoll & Associates Immigration Law PLLC. From 2007 to 2010, he served as an associate attorney with the Law Office of Dennis M. Clare PSC. In 2007, he was a contract attorney at Lichter Associates PC. From 2004 to 2007, he worked as an associate attorney with the Joseph Law Firm PC. Judge Kozoll is a member of the Kentucky Bar.

Nicole A. Lane, Immigration Judge, Newark Immigration Court

Nicole A. Lane was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Lane earned a Bachelor of Arts in 1996 from the State University of New York at Albany and a Juris Doctor in 1999 from the George Washington University Law School. From 2018 to 2022, she served as an assistant director at the New York State Adjudication Services Office. From 2012 to 2018, she served as a senior Administrative Law Judge, and from 2008 to 2012, she served as an Administrative Law Judge at the New York State Unemployment Insurance Appeal Board. From 2005 to 2008, she was a director of public affairs at New York City Health and Hospitals in Harlem, New York, and worked as a public policy analyst prior to that. Judge Lane is a member of the New Jersey State Bar and New York State Bar, and is admitted to practice before the Supreme Court of the United States.

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 5

Francis M. Mwangi, Immigration Judge, Fort Worth Immigration Adjudication Center

Francis M. Mwangi was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Mwangi earned a Bachelor of Arts in 1991 from Kenyatta University in Nairobi, Kenya, a Juris Doctor in 1997 from the West Virginia University College of Law, and a Master of Laws in 2011 from the University of Houston Law Center. From 2019 to 2022, he was an attorney supervisor, and from 2016 to 2019, a staff attorney, in the Legal Services Section at State Counsel for Offenders, Texas Board of Criminal Justice. From 2003 to 2016, he was in private immigration practice in Maryland and Texas. From 1997 to 2003, he was an associate with the immigration law firm of Blaine L. Gilbert & Associates in Baltimore. Judge Mwangi is a member of the Maryland State Bar, State Bar of Texas, and West Virginia State Bar.

Alex D. Perez, Immigration Judge, Houston – Greenspoint Park Immigration Court

Alex D. Perez was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Perez earned a Bachelor of Arts in 2006 from Northwestern University and a Juris Doctor in 2009 from the University of Houston Law Center. From 2019 to 2022, he served as a deputy chief counsel, and from 2010 to 2019, as an assistant chief counsel, with the Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security in Houston. From 2009 to 2010, he worked in private practice in Houston. Judge Perez is a member of the State Bar of Texas.

Xavier F. Racine, Immigration Judge, Sterling Immigration Court

Xavier F. Racine was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Racine earned a Bachelor of Arts in 1998 from Boston College and a Juris Doctor in 2001 from Suffolk University Law School. From 2014 to 2021, he was a partner at Priale & Racine PLC. From 2008 to 2014, he was a partner at Marks Calderon Derwin & Racine PLC. From 2002 to 2008, he was a senior associate at Montagut & Sobral PC. From 2001 to 2002, he was an associate with Jaime Aparisi & Associates LLC. Judge Racine is a member of the Massachusetts Bar, as well as the Fourth Circuit Court of Appeals.

Raphael G. Rojas, Immigration Judge, Orlando Immigration Court

Raphael G. Rojas was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Rojas earned a Bachelor of Science in 1990 from Long Island University at C.W. Post Campus, a Juris Doctor in 1994 from the Interamerican University of Puerto Rico School of Law, and a Master of Laws in Health Law in 1996 from Loyola University Chicago School of Law. From 2008 to 2022, he served as Superior Judge at the Judicial Branch of the Commonwealth of Puerto Rico. From 2006 to 2008, he was in private practice in Puerto Rico. From 2000 to 2006, he served as Municipal Judge at the Judicial Branch of the Commonwealth of Puerto Rico. From 1995 to 2000, he was in private practice in Puerto Rico. Judge Rojas is a member of the Commonwealth of Puerto Rico Bar.

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 6

Marc B. Stahl, Immigration Judge, Chicago Immigration Court

Marc B. Stahl was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Stahl earned a Bachelor of Arts in 1988 from Georgetown University and a Juris Doctor in 1991 from the University of Chicago Law School. From 1991 to 2021, he served as an assistant public defender in the Law Office of the Cook County Public Defender in Chicago, and from 2016 to 2021, he was the Chief of the Felony Trial Division. From January to July 2022, he was in private practice. Judge Stahl is a member of the Illinois State Bar.

Michelle M. Venci, Immigration Judge, Chicago Immigration Court

Michelle M. Venci was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Venci earned a Bachelor of Arts in 1997 from the University of Notre Dame and a Juris Doctor in 2002 from Chicago-Kent College of Law. From 2010 to 2022, she served as an assistant chief counsel, Office of the Principal Legal Advisor (OPLA), U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security, in Chicago. From 2007 to 2010, she served as an assistant chief counsel, OPLA, ICE in Orlando, Florida. From 2002 to 2007, she served as an Assistant State’s Attorney with the Cook County State’s Attorney’s Office in Chicago. Judge Venci is a member of the Illinois State Bar.

Mary Catherine Vergona, Immigration Judge, Sterling Immigration Court

Mary Catherine Vergona was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Vergona earned a Bachelor of Science in 1987 from Miami University in Oxford, Ohio, a Juris Doctor in 1997 from The University of Akron in Akron, Ohio, and a Master of Laws in Military Law in 2005 from The Judge Advocate’s General Legal Center and School in Charlottesville, Virginia. From 1998 to 2022, Judge Vergona served as a Judge Advocate General in the U.S. Army, culminating with her serving as a Circuit Judge from 2019 to 2022 at Fort Belvoir, Virginia. Judge Vergona is a member of the Virginia State Bar.

— EOIR —

The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. EOIR’s mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR is committed to ensuring fairness in all cases it adjudicates.

Communications and Legislative Affairs Division

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Congrats to all! Looks like a well-qualified group with a big job ahead of them. For me, personally, three names particularly stand out.

Professor Geoffrey Hoffman — Judge Geoffrey Hoffman, Houston Immigraton Court

Judge Geoffrey Hoffman of the Houston (S. Gessner Rd.) Immigration Court was most recently the Director of the Immigration Clinic at Houston Law and a noted immigraton litigator and universally respected scholar whose work I have cited and published on Courtside.

Judge Xavier Racine of the Sterling (VA) Immigration Court is an outstanding practitioner who appeared many times before me at Arlington. I also particularly remember that he generously shared his time and expertise with our JLCs and summer interns as a frequent participant in our Brown Bag Lunch Series on “Careers in Immigration.”

Judge Amy F. Haer of the Atlanta (W. Peachtree) Immigration Court was most recently Director of Immigration Services for Catholic Legal Services of Atlanta. A graduate of GW Law, she is an alum of the GW Immigration Clinic headed by my good friend and neighbor in Alexandria, Professor Alberto Benitez. Professor Benitez wrote to me earlier on Friday about his pride in Judge Haer’s achievements and how honored he was to be able to attend her investiture by Zoom. Professor Benitez informs me that Judge Haer is the third of his clinic students to be elevated to the Immigration Bench! Way to go in training the “next generation” of the NDPA!

EOIR needs change! Big time! Lives depend upon it, as does the future of our legal system, now staggering under the load of far too many “ivory tower right wing ideologue jurists” at all levels who have lost sight of the serious scholarship, humanity, and practicality with which the law must be interpreted and applied. Justice without mercy isn’t justice at all, something that the Supremes’ GOP majority needs to be “schooled” on! To the extent that change starts at the “retail level” of EOIR, the latest selections represent progress.

🇺🇸 Due Process Forever!

PWS

08-06-22

☠️⚰️🏴‍☠️ TITLE 42 CAUSES DEATH @ THE BORDER: Rachel Monroe @ The New Yorker Sums Up The Jim Crow Cruelty, Stupidity, & Futility Of Title 42 In One Paragraph! — Title 42 “has increased business for smuggling cartels and spurred people to cross in more dangerous places.”

https://apple.news/AX5E8qIWlQYOauANHEV2g3w

. . . .

Between 2015 and 2020, about fifty bodies were recovered each year in Brooks County, according to an S.T.H.R.C. report. Then came Title 42, a policy enacted by the Trump Administration at the start of the COVID-19 pandemic that closed ports of entry and blocked most avenues for asylum claims, ostensibly for public-health reasons. The policy, which is still in place in a modified form, has increased business for smuggling cartels and spurred people to cross in more dangerous places. “Before Title 42, the calls we got used to be, like, eighty-per-cent apprehended, twenty-per-cent missing,” Canales said. “Now it’s flipped—it’s more like twenty-per-cent apprehended, eighty-per-cent missing.” So far this year, there have been nearly seventy recoveries of remains in Brooks County, putting 2022 on track to be the deadliest year on record.

. . . .

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Read Rachel’s entire report, directly from the border, at the link.

So, before the Trump Administration’s bogus, racist “invocation” of Title 42, 80% of migrants came to the border or were easily apprehended close thereto — most probably because they turned themselves in to seek asylum through the legal system. And, lets not forget, this was with an already badly broken, fundamentally unfair, asylum legal adjudication system intentionally biased and “loaded” against legitimate refugees seeking protection!

Smart, honest public policy would have improved asylum adjudication at USCIS and at EOIR to quickly recognize and grant, with the assistance of NGOs and legal assistance groups, the many cases of legitimate refugees so that they could take their rightful, legal places in our society.

Additionally, by taking refugees seeking legal determinations “out of the equation,” enforcement against those seeking to evade legal processing — certainly a much, much smaller “universe” than is “out there now” — would have been enhanced. Business would have declined for smugglers, as those seeking protection would have been motivated to use a humane, fair, functioning legal system rather than being forced into “do it yourself” refuge!

You don’t have a genius to figure this out — just not be motivated solely by racism like Stephen Miller and his Trump regime cronies! Better qualified — non-Jim Crow righty — Federal Judges would also produce more humane, honest, and rational results.

Additionally, by running a legitimate asylum system, and complementing it with an honest, robust, legal refugee system for Latin America, the Caribbean, and Africa, we would finally have sound data on how many of those seeking to enter at the Southern Border are entitled to immigrate as legal refugees and how many are non-refugees. That’s something on which we now have no reliable information — just myths and anecdotes, many provided by racist restrictionists and nativists with neither expertise in asylum law nor any real interest in the rule of law at the border.

As a result of Title 42, and the unqualified “Jim Crow” Federal Judges, GOP nativist AGs, and their apologists (including some in the media who repeat or republish, without critical examination, GOP racist lies about the border), we now have a deadlier than ever border; the legal immigration system at the border has been functionally abolished and replaced with an underground, extralegal system; the U.S. Government has ceded control of border migration policy to cartels and smugglers; and the job of the Border Patrol — forced to spend time apprehending legal refugees who seek only the protection to which they are legally entitled — has become impossible.

That’s what happens when we let GOP nativist pols, overt racists, and bad, right wing Federal Judges take over the immigration policies that were actually enacted by Congress — a key part of which are legitimate refugee and asylum systems and a fair, functioning, expert Immigration Court. Right now, we have NONE of the foregoing. And, innocent migrants at the border are too often paying the price — with their lives!

Border Death — This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
To comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

“Enforcing the law” does NOT mean unfairly, unwisely, and illegally abrogating the legal asylum system and fair adjudications in Immigration Court at the border. It means fixing the legal asylum system including USCIS Asylum Offices. Perhaps most of all, it means reforming and replacing where necessary the broken, dysfunctional, leaderless, and non-expert Immigration Courts and a BIA that continues to misinterpret asylum and protection laws on a daily basis. We need a BIA of real judges with the expertise and guts to establish fair, humane, correct, positive precedents and to rein in or remove from asylum cases those Immigration Judges who are “programmed to reject, not protect!”

I, along with many others, watched the Brittney Griner travesty unfold. I saw the irony. President Biden was rightfully blasting the outrageous “kangaroo court” show trial that passes for justice in Russia. But, at the same time, he, Harris, and Garland are basically running a farcical “Russian style” dysfunctional immigrant “justice” system at EOIR and calling it a “court!”

🇺🇸 Due Process Forever

PWS

08-05-22

🏴‍☠️🤮👎🏽 WHAT’S GARLAND DOING? — LATEST 4TH CIR. REJECTION OF ABSURDIST EOIR ASYLUM DENIAL SHOWS WHY GARLAND MUST “PULL THE PLUG” 🔌 ON THE BIA! — While He’s At It, He Needs To Look At OIL’s Mindless “Defense Of The Clearly Indefensible!” — Why Are American Women Giving Garland A “Free Pass” On Overt, Institutionalized, Racially-Charged, Misogyny @ His DOJ?

Doctor Death — Would you want this guy as your Immigration Judge or BIA “panel?” If not, tell Garland to “pull the plug” on his deadly and incompetent BIA!
Public Domain

https://www.ca4.uscourts.gov/opinions/201762.P.pdf

Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published

PANEL: KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.

OPINION: Judge FLOYD

KEY QUOTE:

In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador.2 She is thereby entitled to the presumption of a well-founded fear of future persecution. Li, 405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). The IJ and the BIA erred in not affording Sorto-Guzman this presumption, which would

2 Sorto-Guzman argues, in the alternative, that the IJ and the BIA erred in finding that she failed to establish a well-founded fear of future persecution. We will not answer that question today. Because we hold that she properly established past persecution, the proper remedy is to remand the case to the BIA to consider the question of whether DHS can rebut the presumption that Sorto-Guzman has a well-founded fear of future persecution.

11

have then shifted the burden to DHS to rebut the presumption. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004); 8 C.F.R. § 1208.13(b)(1)(i).

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Sorto-Guzman is a life-long Catholic who regularly attended Catholic services in El Salvador. In December 2015, about five members of the Mara 18 gang accosted Sorto- Guzman in the street as she was leaving church. At the time, she was wearing a crucifix medallion around her neck. The gang members tore the chain from her neck, hit and kicked her, and threatened to kill her if she ever wore it or attended church again. Sorto-Guzman stopped attending church after the attack, fearing the gang and their threats.
A few weeks later in January 2016, a group of Mara 18 gang members—including some of the gang members from the December 2015 assault—stopped Sorto-Guzman, along with her sister and Rivas-Sorto, as she was coming home from a shopping trip. One of the men attempted to sexually assault Sorto-Guzman and had started to forcefully kiss her. He only stopped when her screams caught the attention of a neighbor. The gang members threatened to kill Sorto-Guzman and Rivas-Sorto if Sorto-Guzman did not join the gang and start living with them.
3

On February 13, 2016, some of the gang members from the prior incidents tracked where Sorto-Guzman lived and broke into her house carrying guns. The gang members viciously beat Sorto-Guzman, threatened her life, and robbed her. Sorto-Guzman’s neighbors called the police, but they did not come until several hours after the assault. Sorto-Guzman reported the assault and robbery to the officers who arrived at the scene. She also went to the local police station the next day to report the attack. The police made one attempt to investigate, but Petitioners were not home when the police arrived, and the officers never followed up. The day after, a gang member called Sorto-Guzman, warning her she would regret making the report to the police and that they would soon kill her, her son, and her sister.

Absurdly, an Immigration Judge found that this gross abuse and death threats by a gang with the ability and willingness to carry them out did not amount to “persecution.” Worse yet, on appeal, rather than reversing and directing the judge below to follow the law, the BIA agreed — invoking the outlandish “theory” that the death threats, on top of the savage beating, weren’t so bad because they had never come to “fruition.” In other words, the applicant hadn’t hung around to be killed. Then, to top it off, attorneys from the DOJ’s Office of Immigration Litigation (“OIL”) unethically defended this deadly nonsense before the Fourth Circuit! This is “justice” in Garland’s disgraceful, deadly, and dysfunctional “court” system!

Trial By Ordeal — Garland’s BIA Judges applying the “fruition” test. If she lives, it’s not persecution!
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

NOT, a “mere mistake.”

EOIR’s performance is this case, particularly the BIA’s absurdist conclusion that, essentially, death threats must result in death to constitute past persecution, is a contemptuous disregard for binding circuit precedent, a demonstration of gross anti-asylum bias, misogyny, and a clear example of judicial incompetence.

Would a heart transplant surgeon who “forgot” to install a new heart or neglected to sew up the patient’s chest be allowed to continue operating? Of course not! So, why is the BIA still allowed to botch life or death cases — the equivalent of open heart surgery?

If Garland allows his “delegees” to perform in this dangerous and unprofessional manner, in his name, what is he doing as Attorney General? This is a farce, not a “court system?” Those responsible need to be held accountable! And, OIL’s unethical defense of this deadly nonsense is indefensible!

Alfred E. Neumann — “What are legal ethics? Not my friends or relatives whose lives as being destroyed by these ‘Kangaroo Courts.’ Just ‘the others’ and their dirty immigration lawyers! So, who cares? Why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

We’ve heard lots lately from Garland about “accountability.” Why doesn’t it apply to his own, wholly owned, totally dysfunctional, legally deficient, contemptuous, unprofessional “court system” that builds astounding, self-created backlogs while causing pain, suffering, and sometimes sending innocents to death?☠️

Additionally, in Kansas this week, women have shown the power of their just demand to be treated as humans, with rights, rather than dehumanized pawns just there to re-populate the world for the men in charge. So, why not unleash the same passion and rightful fury on Garland and his ongoing, illegal, misogynistic treatment of women (primarily women of color) at EOIR!

Woman Tortured — “She struggled madly in the torturing Ray” — AG Garland has failed miserably to engage with the plight of women, mostly those of color, being denied fundamental rights and abused daily by his lawless, anti-immigrant, anti-asylum, misogynistic “holdover” EOIR! Why are women putting up with his bad attitude and dilatory approach to justice? What happened to Lisa Monaco, Vanita Gupta, and Kristen Clarke? Are they “locked in a dark closet” somewhere in Garland’s DOJ?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

🇺🇸 Due Process Forever!

PWS

08-04-22

⚖️👨🏻‍⚖️🎩 FREE JUDGE BURMAN! — Sudden, Mysterious Disappearance Of Revered U.S. Immigration Judge Lawrence O. “Larry” Burman From Arlington Bench Surprises, Saddens Local Bar!

Judge Lawrence O. Burman — Hon. Lawrence O. Burman
U.S. Immigration Judge
Arlington, VA
Pictured addressing conference at CIS
PHOTO: YouTube

By Paul Wickham Schmidt

Courtside Exclusive

July 30, 2022

Reliable sources tell Courtside that highly-respected U.S. Immigration Judge Lawrence O. “Larry” Burman has been suspended with pay from hearing cases at the Arlington Immigration Court. Reportedly, for the past three months, the distinguished veteran jurist has been “banned” from chambers and relegated to deciding motions from home electronically.

The genesis of the suspension allegedly is a complaint of sexual harassment in court filed by the ICE Office of Chief Counsel in Arlington. A source close to Burman says that he told them he has not received any detailed notice of exactly what he has been accused of, nor has he been given any timeline or details about the alleged investigation.

EOIR is notorious for placing judges and others accused of wrongdoing on “administrative leave with full pay” — sometimes for years spanning several Administrations. Meanwhile, they conduct glacially slow “investigations” and dither over what, if any, formal discipline to impose.

Within the bureaucracy, “never-ending investigations” are sometimes used as a device to “persuade” employees out of favor with “management” to retire or resign. In reality, Courtside is unaware of any full-time trained investigative staff assigned to EOIR.

Significantly, DOJ policies do not appear to require suspension of the employee from public duties in a case such as this. “Danger to the personnel” or “disruptive presence” are the primary considerations. See HR ORDER DOJ1200.

Those who know and have worked with Judge Burman would find it absurd to believe that either of these situations apply to him. Indeed, one source interviewed for this article suggested, perhaps tongue in cheek, that “a propensity toward giving respondents a fair hearing” might help explain ICE’s and EOIR’s enthusiasm for having Judge Burman “off the bench.”

Recently, Courtside described Judge Burman and one of his Arlington colleagues as the “gold standard” for fair, expert Immigration Judges. See https://wp.me/p8eeJm-7Ko. From that standpoint, the sudden suspension appears particularly unusual.

The action caught members of the private immigration bar in the DMV area by surprise. One attorney confirmed having merits cases recently scheduled before Judge Burman “orbited” several years out on the docket for no given reason except that Judge Burman was “out” and therefore unable to hear the cases. “Aimless Docket Reshuffling” and “churning” of cases is an endemic problem at EOIR, which is running an astounding, yet rapidly increasing, backlog of 1.8 million cases.

Other attorneys contacted by Courtside reacted with shock, sadness, and concern for Judge Burman’s well being. “I feel so bad to hear that. He is such a nice man and a good judge,” said one local practitioner.

Judge Burman has been an Immigration Judge for nearly a quarter-century, serving at the Los Angeles and Memphis Immigration Courts before arriving in Arlington. He has been a leader in court-related CLE, serving as a past chair of the FBA’s Immigration Section and the creator and editor emeritus of The Green Card, that section’s educational newsletter. He also has been an officer of the National Association of Immigration Judges (“NAIJ”), where (perhaps ironically) he successfully represented a number of colleagues charged with disciplinary infractions or wrongfully denied benefits.

Until “grounded” by the Trump DOJ, Judge Burman was one of a limited number of local judges eager and willing to participate in educational events sponsored by bar associations and other groups. A graduate of UVA and Maryland Law, and a U.S. Army veteran, Judge Burman had careers in the “Legacy INS” and private practice before being appointed to the bench by then Attorney General Janet Reno in 1998.

☠️🤮⚰️🏴‍☠️ MERCHANTS OF CHAOS & CORRUPTION: GOP HACKS, BAD RIGHTY JUDGES FORCE ILLEGAL CONTINUATION OF BOGUS TITLE 42 ABOMINATION! — Ending Title 42 Will Restore Order To The Border, Says Expert, Professor Stephen Yale-Loehr Of Cornell Law @ The Hill! — But, Wait, There’s Much More Needed, Say I!

Four Horsemen — GOP political hacks and their enabling bad righty Federal Judges have combined to wreak havoc on humanity and trample the Constitution, rule of law, common sense, and simple human decency at our Southern border!
Albrecht Dürer, Public domain, via Wikimedia Commons

Professor Stephen Yale-Loehr
Cornell Law

https://thehill.com/opinion/immigration/3575601-ending-title-42-wont-cause-immigration-mayhem-it-will-restore-order/

In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.

M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.

Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.

The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.

We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster.

. . . .

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

Read Steve’s complete op-ed in The Hill at the link.

I agree that “we must work to make the system more equitable and faster.” But, the answer can’t be just to hire more Immigration Judges in Garland’s dysfunctional, broken, and anti-asylum-biased “court” system. That would just speed the “deportation assembly line” and lead to even more injustice and grotesque inconsistencies.

According to TRAC, Immigration Judge “asylum denial rates” currently “range” from 5% to 100%. That’s a ridiculous, indefensible variation and a total perversion of the generous standard for granting asylum set forth by the Supremes in Cardoza-Fonseca and adopted by the BIA in Matter of Mogharrabi, but seldom enforced or followed, particularly these days. Why this very obvious, totally solvable problem is still festering going on two years into a Democratic Administration that pledged to solve it is beyond me!

Enough of this nonsense, biased, “amateur night at the Bijou” mal-administration of the Immigration Courts at EOIR by Garland’s DOJ! No wonder folks are still complaining about “Refugee Roulette” more than a decade after it was written by my Georgetown Law colleagues Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogales (now an Associate Dean at Temple Law). Why not put one of THEM, or for that matter, Professor Yale-Loehr, in charge of kicking tail and cleaning out the deadwood at EOIR?

At a minimum Garland must:

Remove the holdover “Asylum Deniers Club” from the BIA and replace them with a real judge as Chair and new Appellate Immigration Judges who are widely recognized as “practical experts” with careers that have demonstrated superior scholarship in immigraton and human rights, an unswerving commitment to due process for individuals, and a passion for racial justice in our legal system;
Have the “New BIA” issue useful precedential guidance on how to document and grant valid asylum cases at both the Asylum Office and the Immigration Court, implement best practices, and identify and remove from future asylum adjudication those unqualified Immigration Judges who basically “make up” reasons to deny and can’t or won’t treat applicants fairly; and
Immediately replace with qualified expert judges those Immigration Judges on the “Southern Border docket” who can’t fairly adjudicate asylum cases.

Steve is totally correct about the need for Title 42 to go! But, Garland’s EOIR, particularly the BIA, is just as broken, counterproductive, and out of control as Title 42! In many ways, the illegal abrogation of the rule of law at the Southern Border has somewhat ”hidden” the larger problem that a dysfunctional and incapable EOIR poses for those who do manage to get a hearing!

Without a legitimate, totally reformed and significantly “re-populated” EOIR operating at the “retail level” of our justice system, there will be no rule of law and equal justice under law in America — for anyone!

Tell Garland you have had enough! The deadly and disorderly “EOIR Clown Show” has got to go! Now!

🇺🇸 Due Process Forever!

PWS

07-28-22

⚔️🛡 HON. “SIR JEFFREY” S. CHASE: TIME FOR A NEW APPROACH TO CHIEF IMMIGRATION JUDGE!👩🏽‍⚖️ WANTED: Practical Scholar/Dynamic Intellectual Leader/Fearless Independent Thinker! — PLUS, BONUS COVERAGE: MY “MINI-ESSAY” — “Why The Chief Immigration Judge & BIA Chair Must Be ‘Working Judges’ — No More ‘JINOS’ (‘Judges In Name Only’)!”

https://www.jeffreyschase.com/blog/2022/7/25/correcting-course

Blog Archive Press and Interviews Calendar Contact

Correcting Course?

On July 21, we were treated to the news that our nation’s immigration courts will no longer be run by a chief judge specifically installed by the prior administration as part of its plan to undermine those courts’ independence and fairness. The fact that this development took a year and a half to occur, evoked surprise, and was met with accusations of wrongdoing and threats to investigate from conservative corners that read as parody says a lot about the present state of those courts.

The Chief Immigration Judge should be in charge of the hiring and training of judges, and in setting policy for the courts. The holder of that title is the person most responsible for creating the environment in which the Immigration Courts function. Unfortunately, the choice to fill this position has too often been an afterthought. And the Trump Administration succeeded in stripping the office of pretty much all authority; one of its appointees was effectively reduced to internally disclaiming “it wasn’t my decision” in response to every controversial directive issued from his office.

It is therefore extremely important for the Biden Administration to give much thought to its next appointee, and in doing so, clearly define what the position is meant to be. And although that appointee serves at the will of the Attorney General, Merrick Garland, formerly a distinguished circuit court judge, is particularly qualified to understand the need for a strongly independent Chief Immigration Judge willing to push back against threats to due process. He should thus afford his choice for the position the authority to do just that. Because when courts fulfill their proper function of providing a fair reading of the law and protecting against government error and overreach, we all benefit.

It is important to note that no Chief Immigration Judge has been chosen from the ranks of immigration law scholars. I think this is partly because unlike their counterparts at the B.I.A., the Chief Immigration Judge is not actively involved in deciding cases; theirs is an administrative job. However, it is high time for that view to change. Now would be an ideal opportunity to appoint someone to the position who knows the law at least as well as the judges they will oversee.

Among other reasons, that degree of knowledge is necessary to allow a chief judge to differentiate between legitimate actions taken by judges based on their good faith interpretations of the law, and alternatively false justifications disguised as legal reasoning offered by those whose real goal is to carry out a particular agenda. The ability to clearly articulate the difference is needed to protect the former, eliminate the latter, and rebut the inevitable claims of political motivation in response to such actions.

As a brief recap, under the Trump Administration, we saw plenty of examples of improper political motive. For instance, the Immigration Courts issued not one but two broadsheets of anti-immigrant propaganda unironically titled “Myths vs. Facts” (in spite of being devoid of the latter). In addition, a highly respected Immigration Judge was wrongly chastised for correctly doing his job because his concern for the due process of the non-citizen was not shared by the then powers that be. As if that wasn’t bad enough, the judicial equivalent of a “hit man” was dispatched from D.C. to Philadelphia for the sole purpose of entering an order of deportation in that case, due process concerns be damned. The entire exercise was clearly intended as a message to other judges of the consequences of acting as anything other than a rubber stamp.

When in spite of such warnings, many Immigration Judges continued to grant asylum claims because the correct application of the law required it, the Trump Administration hired new and unqualified judges who would place loyalty to its nativist agenda above all. One of those hires had actually written a shockingly insulting article only months before his appointment, labeling as “rebels without a clue” all of his soon-to-be colleagues who had issued scholarly, well-reasoned opinions granting asylum to female victims of domestic violence. The author demonstrated what should have been a disqualifying lack of knowledge in broadly characterizing all such claims as falling outside the scope of our asylum laws, and in further accusing more learned judges who concluded otherwise of “grossly exceeding their authority” and engaging in a “gross violation of legal ethics.”

What was needed then was a Chief Immigration Judge willing to say “over my dead body” to these hirings and other abusive actions. It is greatly hoped that the next chief judge will possess both the integrity and authority to do just that, with the knowledge that higher-ups within the agency will stand behind their decisions.

And since we won’t always have a former Circuit Court judge serving as Attorney General, it might be worthwhile while we do to ask for regulations (or at least some form of guidance from above) clarifying what will henceforth be expected of those filling the position, and calling on all personnel within the Department of Justice to encourage and support the independence of their colleagues charged with carrying out judicial functions.

Copyright 2022 Jeffrey S. Chase. All rights reserved.

JULY 25, 2022

Reprinted by permission.

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

Very timely and “spot on,” Sir Jeffrey!

Why The Chief Immigration Judge & BIA Chair Must Be “Working Judges” — No More “JINOS” (“Judges In Name Only”)!

By Paul Wickham Schmidt

July 26, 2022

Time (actually “long past time”) for dynamic change! As Chief IJ, we need an “intellectual powerhouse” who is a nationally recognized expert in immigration, human rights, constitutional law, equal justice, racial justice, and an acknowledged, widely-respected intellectual leader with the guts and the “juice” to stand up to bureaucratic meddling and political interference. That’s in addition to having a “big picture” outlook and some actual experience in legal administration.

One additional key change I would make: The Chief Immigration Judge should also function as a “working judge” hearing and deciding at least some cases on a regular basis! There is no substitute for “actual time on the bench” for understanding the Immigration Judge’s proper role.

It puts the CJ in touch with both the DHS Counsel and the private bar on a regular basis. It also exposes BS and nonsense that’s going on in the Immigration Court system. A huge difference exists between “policy and procedural memos issued in a vacuum” from “on high” and actually having to apply them on a daily basis.

Indeed, a “sitting Chief Judge” wouldn’t have to “study” or ask for “reports” on the problems; she would know first-hand what they are from actual experience. Also, the CJ must get out in person and see what’s happening in the various courts, rather than taking an occasional “official tour” where everything tends to be a “sanitized show & tell.” An engaged Chief Judge could be “proactive rather than reactive.”

Surprising what you can find out by actually getting out of the “Executive Suites” in the Skyline Tower in Falls Church and poking around the “retail level” of the system you are administering! There is no better way of doing that than actually taking the bench and dispensing some justice!

How do I know? Well, during my six-year stint as BIA Chair (1995-2001) I was a “working appellate judge” in addition to be an engaged administrator of a dynamically growing and changing organization. I also served as a Senior Executive at EOIR and was never reticent about expressing my views on overall agency management and EOIR’s sometimes stormy relationship with other parts of the DOJ. At one point, I had the unenviable task, along with the then General Counsel of EOIR, of “barring” the then-Director from attending an en banc conference at which cases were to be discussed.

Upon appointment, from private practice, I was one of only four “permanent” appellate judges then on the BIA. By the time I stepped down in 2001, there were more than 20 appellate judges, the staff had more than doubled, a new management structure was in place, a Clerk’s Office had been created, the Virtual Law Library established, precedents were written and formatted differently, and numerous other changes had been made. Sadly, many of the positives have been erased over the past two decades through a combination of political meddling from DOJ and subservient “management” at EOIR.

I also sat and voted on nearly every one of the more than 200 precedent decisions issued during my tenure. I authored some of them, including the landmark decision Matter of Kasinga, recognizing female genital mutation (“FGM”) as persecution for the first time.

Additionally, I sat on three-member panels, sometimes as a “regular,” other times filling in for those who were out of the office. I took panels “on the road” to hear oral arguments across the U.S. (something now “prohibited” by the mindless “Ashcroft reforms” that accompanied his “purge” of the BIA in ‘02-03”) and to meet with the local judges, bar, and INS Counsel. It was “due process in action” — a real-life, open, accessible demonstration of how “collegial justice” should work! It put a much-needed and now totally absent “human face” on appellate justice. As those who practiced before the BIA at that time can testify, my “unmistakable signature” was on thousands of non-precedent decisions.

I also made regular unannounced visits to the BIA Attorney Advisers and the newly-established Clerk’s Office to chat about what was on folks’ minds. “Chairman alert” was a commonly heard “warning” throughout the various buildings of the Skyline Center where the BIA was located.

Sure, I didn’t get everything right, and there were some problems I couldn’t solve. But, I was always “on top” of what was happening — both legally and “operationally” — at the BIA. I didn’t have to spend lots of time asking for reports from the staff, because I knew from experience what the problems were and whether the solutions we were attempting were working or not.

Yes, my decision to actively participate in adjudication and aggressively advance my legal views put me in constant conflict with many of my more conservative judicial colleagues at the BIA. As the record shows, I got “outvoted” on a regular basis at both en banc and on panels. But, so what! That’s what being a “real judge” and having real views on justice, based on many years of experience in and out of Government, is all about!

An unanticipated benefit: My “hands on” judicial experience was good preparation for the somewhat unexpected “next phase” of my career — when Ashcroft “exiled” me to the Arlington Immigration Court in 2003. I’ll acknowledge that there were some things about being a trial judge that couldn’t be learned from reading transcripts, writing appellate decisions, and occasionally observing hearings in person.

In another life, at the “Legacy INS,” I had basically “created and implemented” the “modern Chief Counsel system” now in use at DHS — over some vigorous “internal opposition” to change and centralized legal control. That system provided independence from the “clients” in district office operations. Then, I basically had to face that creation in court every day for 13 years!

But, I certainly had a good idea of what I was getting into and was able to “hit the ground running” in terms of the substance of immigration law, the “big issues,” and what good trial decisions should be and look like in writing. Indeed, my “former colleagues” on the BIA sometimes mischaracterized my “oral decisions” as “written decisions” because I used the “familiar BIA written format” and constructed them as what I found the “ideal decision” to be for appellate review during my BIA tenure.

Interestingly, I found that as an Immigration Judge the more humane and realistic view of the law that had been an anathema to the majority of my BIA colleagues — and which helped me and my so-called “liberal” colleagues get the boot from Ashcroft and Kobach — was often accepted by both parties at the trial level. Even when appeals were taken, I did much better with my former colleagues as an IJ than I did as Chair. And, I certainly learned first-hand how deeply screwed up EOIR was and how misguided the BIA majority was on many of their precedents. That, in turn, prepared me to become an advocate for radical due process reforms at EOIR upon retirement.

It’s surprising what an administrator can learn if he or she actually “does” some of the “line work” they are administering. We need a functioning, substantively-engaged, well-informed, “real judge” for Chief IJ, not another “JINO!”

🇺🇸Due Process Forever!

PWS

07-26-22

Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”

CA3 on Credibility, CAT: Njoka v. Garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

From Dor v. Garland, 1st Cir.

DEAN’S LIST: A+‘s go to :

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

From Vurimindi v. AG, 3rd Cir.

DEAN’S LIST: A+‘s go to DLA Piper’s:

Courtney Gilligan Saleski

Rachel A.H. Horton

🇺🇸 Due Process Forever!

Related posts:

William Van Wyke

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

🇺🇸 Due Process Forever!

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Here’s a report from Nate Raymond @ Reuters:

🇺🇸Due Process Forever!

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Key quote:

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community!

CA4 on IJ Conduct: Tinoco Acevedo v. Garland

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever

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Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published

🇺🇸 Due Process Forever!

Related posts:

By Paul Wickham Schmidt

Related posts:

At a minimum Garland must:

🇺🇸 Due Process Forever!

Related posts:

Why The Chief Immigration Judge & BIA Chair Must Be “Working Judges” — No More “JINOS” (“Judges In Name Only”)!

By Paul Wickham Schmidt

July 26, 2022

🇺🇸Due Process Forever!

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