ROUNDTABLE OF FORMER IMMIGRATION JUDGES – Page 2

⚖️ FOLLOWNG SCATHING REPORT ON ABUSE OF KIDS IN IMMIGRATION COURT, EOIR ANNOUNCES SOME REFORMS — Rekha Sharma-Crawford Reports!

Rekha Aharma-Crawford — Rekha Sharma-Crawford ESQUIRE
Partner and Co-Founder Sharma-Crawford Law
Kansas City, KS

Rekha writes on LinkedIn:

A major step towards acknowledging that the best interest of the child must play a critical role in immigration cases. This was an idea I raised over 10 years ago with my friend and colleague, the brilliant Lory Rosenberg. Later the idea again was put forward with two additional brilliant colleagues, Paul Schmidt and Susan Roy. Sometimes it takes a very long time, but the right approach can’t be hidden forever. So pleased to see it is finally seeing some daylight.

Here’s the Memorandum from EOIR Director David L. Neal:

https://www.justice.gov/d9/2023-12/dm-24-01.pdf

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @ GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

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As noted by my Round Table colleague “Sir Jeffrey” Chase, our Round Table has spoken out about the need for a separate Immigration Court system for children:

As you know, our Round Table signed on to a letter of support for proposed legislation to create a Children’s Immigration Court.

[Director Neal’s statement is] a positive administrative development.

Here’s my take:

While progress is always welcome, this statement shrouds the concept of “best interest of the child” (“BIC”) with legal gobbledygook and bureaucratic doublespeak. (P. 3 of Neal Memo under “Legal Standards”).
Here’s what a clear, correct statement on BIC would look like:

BIC, regardless of whether or not presented by a “Child Advocate” or incorporated in a “Best Interests Determination” (“BID”), can be directly relevant to issues of removability. For example, evidence of removability obtained by methods that clearly conflict with the BIC could be found unreliable or the result of “egregious misconduct” for the purposes of determining removability.

The BIC can also be highly relevant to issues of eligibility for relief. For example, a government or society that deprives certain children of all meaningful educational oportunities might well be engaging in persecution.

In addition, in NLPR cancellation cases, the BIC could be persuasive, even determinative, evidence that removal of a parent will result in “exceptional and extremely unusual hardship” to a USC or LPR child or children.

3) Finally, since the EOIR Director is an administrator, not a quasi-judicial official, his or her policies have a distinct “you can take it or leave it” effect in Immigration Court. Therefore ameliorative statements from the Director, no matter how well-intended, are only effective if the BIA is willing and able to insist on and enforce “best practices” on Immigration Judges, preferably through precedent decisions and reassigning cases away from those IJs who show repeated contempt for due process and best practices.

Unfortunately, the current version of the BIA has, as a body, shown neither much sympathy nor concern for the substantive and due process rights of asylum seekers and other immigrants in Immigration Court. Unless and until Garland “cleans house” and appoints a BIA where all Appellate Judges are immigration/human rights experts laser focused on due process and best practices in Immigration Court — and not afraid of enforcing them uniformly in individual cases and incorporating them in binding precedents — the Director’s latest somewhat ameliorative statement is likely to be as toothless in practice as past efforts.

To a large extent, that’s a “nutshell” of why Garland’s Immigration Courts are in dire failure that threatens our entire democracy.

Unfortunately, that we are three years into this Administration and Garland is still bumbling along with a BIA that largely represents the mistakes and shortcomings of his predecessors suggests that waiting for him to “get religion” on the need for expertise, due process, fundamental fairness, and best practices at EOIR will continue to be an exercise in “Waiting for Godot!”

Immigration practitioners waiting for Garland to institute “due process, fundamental fairness, and best practices” as the sole mission of his EOIR “courts.” It could be a long wait. Very long! Too long!
Naseer’s Motley Group in The Rose Bowl
Merlaysamuel
Creative Commons Attribution-Share Alike 3.0
Waiting for Godot in Doon School.jpg Copy
[[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]]
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December 8, 2011

🇺🇸 Due Process Forever!

PWS

12-22-23

☠️ DERELICTION OF DUTY! — 9TH CIRCUIT JUDGES RIP BIA’S TOXIC “DEPORT AT ANY COST” CULTURE — “The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.”

Kangaroos — Some Article III Judges recognize that “deport at any cost” at EOIR is a “bad look” for American justice!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

In this case, involving a woman and her two children, EOIR engaged in “Aimless Docket Reshuffling” by unilaterally moving the respondents hearing to an earlier date — arguably a due process denial in and of itself given the coordination and preparation necessary to competently present merits cases in Immigration Court. Then, EOIR failed to give legally sufficient notice of the arbitrarily accelerated hearing — a common occurrence in this dysfunctional and poorly administered system, as most practitioners would tell you.

Indeed, the defective notice was returned to EOIR, so the IJ knew that the respondent was never properly notified of the hearing. Nevertheless, ICE improperly moved for an in absentia order and the the IJ erroneously granted it.

Upon learning of the illegal “in absentia” order entered against her, the respondent promptly moved to reopen, providing unrebutted evidence of non-receipt of notice. The IJ erroneously denied the motion.

On appeal, the BIA compounded this farce by wrongfully affirming the IJ’s clearly wrong decision. Instead of confessing error, OIL advanced frivolous arguments for dismissal, falsely claiming dilatory action by the respondent, even though there is no “time bar” on a motion to reopen for defective notice.

The Ninth Circuit summarily reversed in an (unfortunately) unpublished decision. Circuit Judges Friedland and Paez, obviously and justifiably upset by this totally preventable travesty, were motivated to enter a separate concurring opinion commenting on the unprofessional “clown show” 🤡 operating at EOIR:

FRIEDLAND, Circuit Judge, with whom Circuit Judge PAEZ joins, concurring:

When the date of a removal hearing changes, the Government is required to provide a Notice of Hearing (“NOH”) containing the new date and time. 8 U.S.C. § 1229(a)(2)(A). If a person fails to appear for her hearing, she shall be removed in absentia only “if the Service establishes by clear, unequivocal, and convincing evidence that the written notice [of the hearing] was so provided.” Id. § 1229a(b)(5)(A).

Here, when Ontiveros Lozano’s removal hearing date was moved up, the Government mailed her an NOH, but it was returned as undeliverable over a month before her scheduled hearing. Ontiveros Lozano therefore indisputably did not receive the required notice, and the Government knew this. Yet the Government requested and received an in absentia removal order against Ontiveros Lozano when she did not appear for her scheduled hearing. In doing so, the Government violated the explicit statutory requirement in § 1229a(b)(5)(A).

The Government now argues that Ontiveros Lozano’s removal proceedings should not be reopened because she was not diligent in discovering the Government’s conduct and because she has forfeited her challenge to the entry of the in absentia removal order.

The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.

Read the full opinion here:

9th Cir Absentia set aside

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

The full ugliness and dysfunction of EOIR and the DOJ are on display here:

Aimless Docket Reshuffling in action;
Defective notice;
Violation of statutory requirements;
Defective administration of justice;
Unethical actions by ICE counsel in requesting an in absentia order knowing full well that the respondent had never received notice;
Stunningly poor trial judging (2X);
Horrible appellate judging;
Frivolous defense of an unjust decision by OIL.

This system is broken! It’s promoting injustice and clogging the Article III Courts with poor quality work product by USG “judges” and attorneys who aren’t up to or well-qualified for their jobs. The focus on “removal at any cost” rather than due process and justice is unconstitutional and unethical. It comes from poor leadership from the Attorney General on down! The only question is why isn’t anybody in charge motivated to fix it!

A quarter century ago, the “EOIR vision” was a noble one: “Through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all!” It was even posted on the website! Not only has that noble vision disappeared, both literally and figuratively, but over the last two decades Administrations of both parties have degraded justice and functionality at EOIR — some intentionally, some negligently, sometimes a toxic combination of the two.

In the absence of Article I legislation, what EOIR and the DOJ immigration bureaucracy need is a thorough housecleaning, new dynamic, due-process-focused expert leadership, and better judges at both levels. Letting EOIR continue its “death spiral,” as the Biden Administration has done, is totally unacceptable!🤯

Many thanks and appreciation to one of our newest Round Table 🛡️ members, Judge Sandy Hom, recently retired from the New York Immigration Court, for spotting this unpublished opinion and forwarding it! It’s the kind of common purpose, collegiality, and teamwork that is largely absent from today’s dysfunctional EOIR!

🇺🇸 Due Process Forever!

PWS

12-07-23

🤯☠️🤮 BAD JUDGING TRIFECTA: BIA’s Poor Performance Tries The Patience Of The Ultra-Conservative 5th Circuit!

Three LemonsBy Auguste Renoir (1918} Public Realm — Three Lemons
By Auguste Renoir (1918}
Public Realm
The BIA pulls three lemons on an epic judging fail that left a sour taste in the mouths of Fifth Circuit Judges!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-reversal-and-victory-at-ca5-argueta-hernandez-ii

On July 10, 2023, a Fifth Circuit panel dismissed Mr. Argueta-Hernandez’ petition for review for lack of jurisdiction, 73 F.4th 300.

On Dec. 5, 2023 the panel (Higginbotham, Graves, and Douglas) granted rehearing, granted the petition, vacated and remanded:

“Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.”

[Hats way off to Alison Lo, Jonathan Cooper and Chuck Roth!]

Alison Lo, Esquire

Jonathan Cooper, Esquire

Chuck Roth, Esquire

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

Congrats to this all-star NDPA litigation team. Once again, the expertise and scholarship in asylum and immigration law is on the “outside,” the NDPA, rather than at EOIR where it is so much needed!

Judge Higginbotham is a Reagan appointee. Judge Graves was appointed by Obama. Judge Douglas is a Biden appointee.

Here’s what the “coveted trifecta of bad judging” looks like:

The BIA:

1) misapplied prevailing case law,

2) disregarded crucial evidence, and

3) failed to adequately support its decisions!

My only question is: Did they manage to get the ”A#” right?

Golden nugget: The 5th Circuit recognizes that under the Supremes’ decision in Cardoza-Fonseca: “A ‘reasonable degree’ [for establishing a “well founded fear”] means a ten percent chance.” This “seminal rule” is violated by BIA panels and Immigration Judges across the nation on a daily basis. It is also widely ignored by many Circuit panels.

Unlike the BIA, Judge Higgenbotham carefully and clearly explains how threats other than physical injury can amount to persecution — another “seminal rule” that too many EOIR adjudicators routinely ignore.

In sharp contrast to the BIA’s intentional “butchering” of the “mixed motive” doctrine in Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023), Judge Higgenbotham correctly articulates the meaning of “at least one central reason.” See https://immigrationcourtside.com/2023/12/04/☠️🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

He states:

By characterizing MS-13’s threats against Argueta-Hernandez and his family as
solely extortion, BIA disregards that he needed only to present “‘some
particularized connection between the feared persecution’” and the
protected ground in which his application for relief relies. . . . Such a rigorous standard would largely render nugatory the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).”).

Precisely! Ignoring Cardoza-Fonseca and their own binding precedent in Matter of Mogharrabi is what the BIA does frequently in “manipulating the nexus requirement” to deny meritorious claims to qualified refugees who face real harm! It’s all part of the toxic anti-asylum bias and “any reason to deny culture” that still permeates EOIR under Garland!

The BIA is not allowed to “presume,” as they effectively did in M-R-M-S-, the lack of qualifying motivation in “family based” psg cases and place an undue burden on the respondent to “prove” otherwise.

The panel also reams out the BIA for failure to follow basic rules and precedents requiring a separate CAT analysis.

Unlike the legal gobbldygook, obfuscation, doublespeak, and “canned” language that plagues many BIA opinions, Judge Higginbotham offers a clear, understandable, clinical explanation of asylum law and how it should be applied to what is actually a recurring situation in asylum law!

Reading this very clear opinion, I couldn’t help but feel that it was a panel of “general jurisdiction” Federal Judges from a so-called “conservative Circuit” who understood the complexity and nuances of asylum law, while the BIA Appellate Judges were the “rank amateurs.” This reflects a criticism oft made by my Round Table colleague Hon. “Sir Jeffrey” Chase that EOIR’s asylum training is grotesquely substandard — far below that readily available in the “private/NGO/academic” sector! What possible excuse could there be for this ongoing travesty at DOJ?

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges. His consistent, outspoken criticism of EOIR’s poor asylum training is proving all too true on a daily basis!

AG Garland continues to show a truly (and disturbingly) remarkable tolerance for poor judicial performance by his subordinates at the BIA. At the same time, he shows little, if any, concern for the deadly devastating impact of that bad judging on human lives and the way it corrodes our entire legal system!

The glaring, life-threatening legal and operational problems at EOIR are solvable. We should all be asking why, after three years in office, a Dem Administration has made such feeble efforts to bring long overdue leadership, substantive, and operational changes to “America’s worst court system?” Well into what was supposed to be a “reform” Administration, EOIR remains a steeped in the “culture of denial and bias against asylum seekers” actively furthered by the Trump Administration and NOT effectively addressed by Garland (although he concededly has made a few improvements)!

🇺🇸 Due Process Forever!

PWS

12-06-23

☠️🤯 BIA TRASHES NORMAL LEGAL RULES OF CAUSATION, JETTISONS 4TH CIR. PRECEDENT, TO DENY FAMILY-BASED PSG CASE, THE LATEST ANTI-ASYLUM ZNGER FROM FALLS CHURCH! — Family Targeted By Gangs Seeks Protection, Finds Only Rejection From BIA! — Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023)

Four Horsemen — BIA Asylum Panel In Action. The BIA’s “take no prisoners” approach to asylum law has endangered asylum seekers lives without deterring them from applying! The BIA’s convoluted approach to asylum law is one factor making hearings for unrepresented applicants inherently unfair!
Albrecht Dürer, Public domain, via Wikimedia Commons

BIA HEADNOTE:

If a persecutor is targeting members of a certain family as a means of achieving some

other ultimate goal unrelated to the protected ground, family membership is incidental or

subordinate to that other ultimate goal and therefore not one central reason for the harm.

Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reaffirmed.

PANEL: MALPHRUS, Deputy Chief Appellate Immigration Judge,

CREPPY and PETTY, Appellate Immigration Judges.

OPINION BY: JUDGE GARRY MALPHRUS, Deputy Chief Appellate Immigration Judge

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsInVybCI6Imh0dHBzOi8vd3d3Lmp1c3RpY2UuZ292L2Q5LzIwMjMtMTIvNDA2OC5wZGYiLCJidWxsZXRpbl9pZCI6IjIwMjMxMjAxLjg2NDc1MjkxIn0.q_Zj4XKDQU56vCbvWbRgEZ-m1xhrXiZN-g-3R6TPtX0/s/500473331/br/232067904503-l

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Let me explain the BIA’s rule:

1) In any “mixed motive” case, EOIR will find that the “non-covered motive” is primary and all others are “tangental” so that the claim will be denied.

2) EOIR will ignore “but for,” “proximate cause,” and any other established legal rules of causation to maximize asylum denials.

3) Facts are irrelevant unless they support denial.

In its rush to deny, the BIA basically invents a “presumption” that family based persecution is “tangential” to some other non-qualifying ground. The respondent then must “establish, by direct or circumstantial evidenc, that their family membership is more than incidental, tangential, superficial, or subordinate to other motives.”

When Congress added the “at least one central reason” language in 2005, they clearly intended to preserve a robust “mixed motive” doctrine by indicating that there could be “more than one” central motive. The BIA, however appears to be strangling the “mixed motive” language by intentionally, and often artifically, “subordinating” qualifying motives to non-qualifying ones!

And, of course, faced with a choice of adopting Circuit law that protects or that which rejects, the BIA invariably chooses the interpretation least favorable to the asylum applicant, as they did here.

I’m not the only member of the Round Table to remark on the BIA’s questionable performance.

Judge “Sir Jeffrey” Chase says:

“This holding is contrary to asylum law generally and to multiple Fourth Circuit holdings to the contrary. I would also argue that it contradicts Second Circuit case law, and the Supreme Court’s holding regarding the meaning of “on account of” in Bostock v. Clayton County.”

Lory Rosenberg — Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC

Former BIA Appellate Judge Lory D. Rosenberg quipped:

“Don’t confuse me with the facts.”

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

Retired Judge Roy said:

“This isn’t good—another Friday afternoon surprise!”

The poor performance of the BIA in establishing asylum precedents is a major contributing factor to disorder at the border and a dysfunctional, overly complicated, unduly restrictive, hopelessly backlogged, fundamentally unfair asylum adjudication system!

🇺🇸 Due Process Forever!

PWS

12-04-23

⚖️🗽👏🙏 PRO BONO SPOTLIGHT: SPLC PRO BONO SUPREMES’ WIN GIVES ASYLUM APPLICANT A SECOND CHANCE — Round Table 🛡️⚔️ Also Helped!

From SPLC:

Estrella Santos-Zacaria has come a long way from San Pedro Soloma, Guatemala, a village nestled in the Sierra de los Cuchumatanes mountains and known as El Valle del Ensueño, or the Valley of Dreams.

For years, Santos-Zacaria dreamed desperately — of escape.

In 2008, she attempted to immigrate to the U.S., fearing that the violence she had experienced because of her sexual orientation and identity as a transgender woman could get her killed. Since then, she has been deported twice.

But in January, her case made its way to the U.S. Supreme Court. And on May 11, Santos-Zacaria won the right to further challenge her deportation — and the potential to start a new life in the U.S. Other immigrants facing deportation could benefit, as well, because the ruling helps clear a procedural obstacle for noncitizens seeking judicial review of rulings by the Board of Immigration Appeals (BIA), an administrative appellate body within the U.S. Department of Justice.

The Supreme Court’s decision, authored by Justice Ketanji Brown Jackson, also marks a notable step in its acknowledgment of transgender people. Santos-Zacaria’s chosen name, Estrella, was referenced alongside her former given name, and her proper pronouns were used throughout.

The case was the first initiated by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI) to reach the U.S. Supreme Court. SIFI provides pro bono legal representation to asylum seekers who are being held at immigrant detention centers in the Deep South.

“What Estrella’s won is the right to keep fighting,” said Peter Isbister, senior lead attorney for SIFI. “And that would not have been possible without her team of volunteer attorneys. Cases and clients like Estrella are why SIFI believes so deeply in having a pro bono program.”

Read More

In solidarity,

Your friends at the Southern Poverty Law Center

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

The Round Table filed an amicus brief supporting Estrella’s position before the Supremes.

⚖️🗽🛡⚔️ ON A ROLL — ROUND TABLE ON THE WINNING SIDE FOR THE 3RD TIME @ SUPREMES! — Santos-Zacaria v. Garland — Jurisdiction/Exhaustion — 9-0!

In her case, both the BIA and the 5th Circuit had gone out of the way NOT to meaningfully review life or death mistakes made in the Immigration Court. In doing so, they tossed aside the realities and roadblocks facing those seeking justice in Immigration Court and their representatives (if any, in a glaringly unfair system).

This case shows the critical importance of pro bono immigration assistance. These lower court Federal Judges focused not on constitutionally required due process and fundamental fairness, or on the vulnerable human life at stake, but rather on inventing ways NOT to provide fair hearings in some of the most important, perhaps the most important, cases coming before the Federal Justice system.

Pro bono representation levels the playing field and exposes the poor performance of those whose sole focus should be individual justice, rather than “institutional task avoidance!”

🇺🇸 Due Process Forever!

PWS

11-26-23

🇺🇸 SHE’S RUNNING! — ROUND TABLE’S 🛡️ JUDGE CECELIA ESPENOZA SEEKS COLORADO STATE HOUSE SEAT!

Cecelia M. Espenoza — Hon. Cecelia M.Espenoza
Former Appellate Immigration Judge, BIA
Source:
Denverdemocrats.org

View this email in your browser

I’m Running For the State House

I have spent my life serving our community by trying to create a more just, equitable and inclusive world. From my work as a judge striving to give everyone an equal opportunity for justice, to my work as a law professor training the next generation of legal minds, to my work as a local Democratic Party leader helping to elect progressive candidates, I have always answered the call to serve.

I am Cecelia Espenoza, and I am thrilled to announce that I have officially filed to represent North and West Denver in the Colorado State House!

I have seen the amazing results when the community works together to make a difference. My parents were migrant farmworkers who became small business owners. My father became a community icon as the first licensed Mexican-American barber. He created a space for all in our community to gather and enjoy life, even when things were hard. I promise that I will work to unite our community toward our shared goals and values: fairness, equality, and progress for all.

Will you join me as one of my first supporters with a $25, $50, $100 or $450 donation today to get my campaign off to a strong start?

We face so many issues in Colorado that make it harder for people to thrive. Our rent and housing costs have skyrocketed, leaving many of us without a safe and secure place to live. Our wages have not kept up with the spike in the cost-of-living. Too many of us lack access to affordable healthcare; adequate food; or the ability to pay down student loans. All of this while right-wing politicians try to undermine basic rights around reproductive healthcare, the LGBTQIA community, and access to the ballot box.

I’m running because the voters of House District 4 deserve a representative who will work to serve them and address issues, not serve themselves by posturing on social media and seeking the limelight. The real problems our community faces like gun-violence, housing costs, climate change, educational inequity, racism, and healthcare access demand a clear, mature, and reasoned look at changing policy. I promise that I will be a representative who puts the people of our community first.

Donate now to help me spread my message to the voters of Denver to make sure they know the choice they have next year.

I am proud of my record of getting things done to help others. I am proud to be a Democrat and to have helped so many other great candidates achieve success throughout my life. Now I need your help as an inaugural member of my team.

If you’ve made it this far and are in a financial position to be one of my inaugural donors your contribution will help me stand up a campaign and spread my message to the voters.

If there are any questions that aren’t answered by my website, or if you just want to grab a cup of coffee, you can call or text my cell phone at 703-989-9261 or email me at cecelia@cecelia4colorado.com

Donate Here

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

Good luck, my friend and colleague! Thanks for taking on the challenge! We need more NDPA stars in elected positions at all levels, across our nation!

🇺🇸 Due Process Forever!

PWS

11-18-23

⚔️🛡️⚖️🗽👩🏽‍⚖️ ROUND TABLE AMONG ORGS ENDORSING THE BIPARTISAN CHILDREN’S IMMIGRATION COURT BILL! — Rep. Hillary Scholten (D-MI) Among Co-Sponsors!

“Sir Jeffrey” Chase reports:

Hi all: The bipartisan Children’s Immigration Court bill that we endorsed was introduced today.

The press release of Sen. Michael Bennet included this quote from Cecelia!

“The most vulnerable people in immigration proceedings are unaccompanied children. The Immigration Court Efficiency and Children’s Court Act of 2023 not only improves the process for children, it also provides necessary support and guidance to the overburdened immigration court system to address the needs of these children,” said Cecelia M. Espenoza, Former Appellate Immigration Judge.

A link to the full press release is here:

https://www.bennet.senate.gov/public/index.cfm/press-releases?id=26F938C9-0426-41DA-8F25-1BF08FD8E4AE

And this accompanying list of sponsoring organizations includes the Round Table (at #28):

https://www.bennet.senate.gov/public/_cache/files/8/5/85527130-70b8-40ab-8324-4ecc466712c5/E717DE48CC2EA2E5166E595774B666E5.children-s-court-supportive-orgs.pdf

Feel free to amplify/share/distribute.

Thanks to all! – Jeff

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

Thanks to Sen. Michael Bennett (D-CO), Sen. Lisa Murkowski (R-Alaska), Rep. Dan Goldman (D-N.Y.), Rep. Maria Salazar (R-Fla.), Rep. Hillary Scholten (D-MI), and Rep. Lori Chavez-DeRemer (R-OR)! This is long, long overdue! A great bipartisan idea! 😎

Rep. Hillary Scholten (D-MI)
Credit: Ike Hayman
SOURCE: Wikipedia

Rep. Hillary Scholten, the only former EOIR attorney in Congress, and an indefatigable advocate for good government, due process, common sense, and the well-being of children had this to say:

“Let’s be clear about one thing–infants and children should not be in a situation where they have to stand trial in immigration court,” said Scholten. “We have a deeply broken immigration system in this country. But as we continue the long and complicated work for repairing it, of fighting for justice in a political climate that has grown callous to the suffering of children, the next best option is creating a court that works to accommodate their unique needs. As a mom, I’ll never stop fighting for these vulnerable kids.”

🇺🇸 Due Process Forever!

PWS

11-4-23

⚖️🗽👩🏽‍⚖️👨🏻‍⚖️ ROUND TABLE, GIBSON DUNN PRO BONO PROVIDE SUPREMES WITH EXPERT INPUT ON “NOTICE” ISSUE IN LATEST AMICUS BRIEF! — Campos-Chaves v. Garland

Here’s a copy of the brief:

Notice Amicus—1737000-1737148-judges_amici briefly

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

Many thanks to all involved in this effort, particularly Richard Mark and the Pro Bono Team at Gibson Dunn. Will the DOJ go down for the third time on interrelated notice issues before the Supremes? What if the BIA followed the statute and held DHS fully accountable? What if due process, fundamental fairness, and best practices were the mission of EOIR? (Hint, they once were the “noble vision” of EOIR — trashed by Administrations of both parties.)

🇺🇸 Due Process Forever!

PWS

10-31-23

⚖️🛡️ANOTHER ROUND TABLE AMICUS FILED — M.A. v Mayorkas!

Dan Kowalski reports:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/round-table-files-amicus-brief-in-m-a-v-mayorkas

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

Thanks to all involved! The Round Table is on a roll!🗽

🇺🇸 Due Process Forever!

PWS

10-10-23

⚖️🛡 LATEST NEWS FROM THE ROUND TABLE: “Round Table Files Amicus Brief in East Bay v. Biden”

From BIB daily:

http://www.bibdaily.com/

October 06, 2023

(1 min read)

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EAST BAY SANCTUARY COVENANT, et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, President of the United States, et al.,
Defendants-Appellants.

On Appeal from the United States District Court for the Northern District of California
Case No. 4:18-cv-06810-JST

BRIEF FOR AMICI CURIAE FORMER IMMIGRATION JUDGES & FORMER MEMBERS OF THE BOARD OF IMMIGRATION APPEALS IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

TAGS:

AMICUS BRIEF

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Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”

🇺🇸 Due Process Forever!

PWS

10-09-23

☠️🤮 DEADLY UNFAIR “COURTS” POTENTIAL “DEATH TRIBUNALS” FOR AFGHAN HAZARA REFUGEES — Hon “Sir Jeffrey” Chase Speaks Out: “Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase!”

https://apnews.com/article/afghanistan-deportation-taliban-asylum-us-immigration-court-cabf3bcdec9a62b12f08300d1260cd68

Julie Watson reports for AP:

The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.

Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.

He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.

At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.

“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.

. . . .

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

Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.

But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.

“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.

Chase said the hearing appeared rushed, and he believes the case backlog played a role.

“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”

Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.

John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.

. . . .

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Read Julie’s complete article at the link.

Hazaras are an historically persecuted group in Afghanistan whose already perilous situation has demonstrably worsened under the Taliban. See, e.g., https://www.ushmm.org/genocide-prevention/blog/urgent-action-needed-hazaras-in-afghanistan-under-attack. This case should have been a “slam dunk grant” under a proper application of precedents like Cardoza and Mogharrabi! Additionally, Hazara claims should be routinely grantable under the “pattern or practice of persecution” regulations that EOIR judges are supposed to apply (but seldom do).

No wonder this system builds incredible unnecessary backlogs when it botches the easy grants, wastes time on specious, disingenuous reasons for denial, and allows questionably-qualified judges to run roughshod over due process, the rule of law, and binding precedents.

Here’s additional commentary from “Sir Jeffrey:”

Thankfully, the amazing Steve Schulman at Akin Gump took on Mohamed’s case after his pro se hearing, and Human Rights First provided additional support.

(The Round Table was prepared to file an amicus brief on this one at the Fifth Circuit, but an agreement was reached to reopen the case at the IJ level before briefing was due.)

That the Government agreed to reopen this case basically “says it all” about the absurd result in the original hearing and the bogus “waiver” of appeal.

🇺🇸 Due Process Forever!

PWS

09-29-23

🗽🧑‍⚖️⚖️ SHE’S HERE, SHE’S THERE, SHE’S EVERYWHERE! — Judge Dana Leigh Marks “Does DACA” On TV!

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges, Member, Round Table of Retired Immigration Judges

Catch her here on this clip:

https://public.latakoo.com/b0a3501b17da92539cb8e16c1e6adb5en

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My friend might have “retired,” but “Nana Dana” as she now calls herself sure hasn’t slowed down! And, the rest of us are glad she’s still leading the way!

Dana’s retirement was a big loss for EOIR (at a time they can ill-afford to lose experienced talent), but a big gain for our Round Table, the rest of the NDPA, and Dana’s granddaughter!

🇺🇸 Due Process Forever!

PWS

09-22-23

⚖️👩🏼‍⚖️ HON. DANA LEIGH MARKS: DOJ’S PROPOSED RULE ENHANCING IMMIGRATION COURT INDEPENDENCE & EFFICIENCY IS A “BIG DEAL!”

From the Los Angeles & San Francisco Daily Journal:

https://drive.google.com/file/d/1Fmf6Fqu_Hl8hkIxclUllNEZLQ2LGouU9/view?usp=sharing

The just published proposed regulation is a big deal. It begins with over thirty pages of introductory information debunking the misguided justifications for the previous version of this rule [enjoined by a Federal Court]. Point by point the flawed logic, counterproductive encroachment on judicial discretion, and unnecessary micromanagement [an endemic EOIR problem] is called out.

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Read Dana’s complete article at the link.

Many thanks my friend for your incisive, outstanding analysis! It’s astonishing and quite disturbing the amount of absolute “bunk” and racially-focused misinformation DOJ and EOIR foisted on the public under Trump. Indeed, EOIR under Trump pushed out a scandalously false and misleading bogus “fact sheet” smearing asylum seekers and their lawyers. See, e.g., https://immigrationcourtside.com/2019/05/13/special-roundtable-of-former-immigration-judges-blasts-eoir-director-mchenry-for-spreading-lies-misrepresentations-political-pandering-undermining-judicial-independence-and-gro/.

It appears that EOIR is slowly correcting some of the mistakes of the recent past. What’s disappointing and of great concern: 1) Should and could have been “day one stuff;” 2) Judge Dana Marks was on the EOIR payroll on Jan. 20, 2021, and she or a qualified expert like her could and should have been put in charge and empowered to kick tail, take names, clean house, bring in top judicial and administrative talent, and implement long-overdue, still absent, EOIR reforms!

Better late than never? Perhaps, we’ll see. But, I’m not betting the farm on it!

🇺🇸 Due Process Forever!

PWS

09-21-23

🗽⚖️🇺🇸⚔️🛡 ROUND TABLE (THANKS TO WILMER CUTLER PRO BONO) JOINS OTHER NGOS IN URGING SUPREMES TO PRESERVE MEANINGFUL JUDICIAL REVIEW FOR CANCELLATION! (Wilkinson v. Garland) — Rae Ann Varona Reports for Law360:

Rae Ann Varona
Legal Reporter
Law360
PHOTO: Linkedin

Dan Kowalski over at LexisNexis Immigration Community helpfully forwarded the pdf’s of Rae Ann’s article and the three briefs. You can access them here:

Ex-Immigration Judges Back Trinidadian Man Before Justices – Law360

1718000-1718295-former eoir judges

1718000-1718295-domestic violence orgs

1718000-1718295-aila

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Our Round Table, with the help of some of the greatest litigators and law firms out there, continues to provide key support for the NDPA and timely expertise to the Federal Courts and father Executive on all levels!

🇺🇸Due Process Forever!

PWS

09-08-23

⚖️🗽👩🏽‍⚖️👩🏽‍🏫 WITH HELP FROM OUR FRIENDS @ ROPES & GRAY, IMMIGRATION PROFESSORS & ROUND TABLE 🛡️ FILE AMICUS ON WITHHOLDING/NEXUS STANDARD OF PROOF IN 1ST CIR. — Paye v. Garland

Read the full brief here:

Paye [2023.8.25] Amici Brief (Law Profs & IJs & BIA members)

Here’s the “Statement of Interest:”

INTEREST OF THE AMICI CURIAE1

This brief represents the views of two groups of amici curiae. See Corporate

Disclosure Statement for names of amici curiae. The first group is comprised of thirty-two immigration law scholars and clinical professors. These amici teach immigration law and/or provide clinical instruction in law school clinics that provide representation to asylum seekers and noncitizens seeking relief under 8 U.S.C. § 1231 and 8 U.S.C § 1158. As such, amici are knowledgeable of the particular legal requirements of 8 U.S.C. § 1231 and 8 U.S.C § 1158 and have a special interest in the proper administration and interpretation of the nation’s immigration laws, particularly asylum and withholding of removal.

The second group is comprised of forty-one former immigration judges (“IJs”) and Board of Immigration Appeals (“BIA”) members who have collectively presided over thousands of removal proceedings and have interest in this case based on their many years of dedicated service administering the immigration laws of the United States. Based on this experience, amici believe that withholding of removal

1 Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici notes that all parties have consented to the filing of this brief.

Furthermore, pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici further certifies that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparation or submission of the brief, and no person, other than amici, their members, or counsel has contributed money intended to fund preparing or submitting the brief.

-1-

Case: 23-1426 Document: 00118044713 Page: 13 Date Filed: 08/25/2023 Entry ID: 6587480

is the means whereby Congress provided for the United States to meet its international treaty obligation of “nonrefoulement” under Article 33 of the Refugee Convention. Withholding of removal is a vital legal tool upon which IJs rely to ensure that noncitizens appearing before them are not removed to countries for which they have proven it to be more likely than not that they have experienced (or will experience) persecution on account of a protected ground — an extremely high burden to meet. This relief is mandatory where the noncitizen’s burden of proof is met and does not lead to permanent status or derivative status for immediate family members, in contrast to asylum, which is a discretionary form of relief that grants a permanent status and derivative status for immediate family members.

Amici contend that the more lenient “a reason” standard, as applied to the nexus between the protected ground and the persecution for withholding (as opposed to the “at least one central reason” standard for asylum) requires IJs to order withholding in cases where evidence of nexus may be insufficient for a discretionary grant of asylum. Such an interpretation would provide greater protection from violating the international treaty obligation of nonrefoulement. The instant case, where Petitioner is ineligible for asylum but may be protected from severe future persecution by withholding of removal, presents exactly the context in which Congress intended for the lesser “a reason” nexus standard to apply. Addressing this question here provides an opportunity for this Court to affirm Congress’s clear

-2-

Case: 23-1426 Document: 00118044713 Page: 14 Date Filed: 08/25/2023 Entry ID: 6587480

intent, expressed in the statutory language of 8 U.S.C. § 1231(b)(3)(C), to establish protection against nonrefoulement for this noncitizen and many others who, for any number of reasons, are ineligible for the discretionary relief of asylum.

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Many thanks to all involved!

🇺🇸 Due Process Forever!

PWS

08-28-23

Rekha writes on LinkedIn:

Here’s the Memorandum from EOIR Director David L. Neal:

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

Here’s my take:

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

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BIA HEADNOTE:

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From SPLC:

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“Sir Jeffrey” Chase reports:

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Here’s a copy of the brief:

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Dan Kowalski reports:

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From BIB daily:

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Julie Watson reports for AP:

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Catch her here on this clip:

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From the Los Angeles & San Francisco Daily Journal:

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Dan Kowalski over at LexisNexis Immigration Community helpfully forwarded the pdf’s of Rae Ann’s article and the three briefs. You can access them here:

🇺🇸Due Process Forever!

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Read the full brief here:

Here’s the “Statement of Interest:”

🇺🇸 Due Process Forever!

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