"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
Note: The briefing is back after a short hiatus while I transitioned to a new position at NIJC. It will be coming from my gmail for a few weeks while I set up a more long-term distribution system. In the meantime, please add egibson@heartlandalliance.org to your trusted contact list so that any future messages do not go to spam.
CONTENTS (click to jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
eROPs: EOIR has begun digitizing some paper records of proceedings (ROPs). Once an ROP is an eROP, only ECAS electronic filing will be permitted on that case. However, this will be a lengthy process and it sounds like EOIR is prioritizing conversion of smaller records first.
DHS: Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS.
USCIS: U.S. Citizenship and Immigration Services today announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AP: A federal appeals court on Friday upheld sweeping asylum restrictions to prevent spread of COVID-19 but restored protections to keep migrant families from being expelled to their home countries without a chance to plead their cases. Almost simultaneously, a federal judge in another case ruled that the Biden administration wrongly exempted unaccompanied children from the restrictions and ordered that they be subject to them in a week, allowing time for an emergency appeal.
Bloomberg: The estimated wait time for a work permit has risen to eight to 12 months, up from about three months in 2020, according to data from U.S. Citizenship and Immigration Services.
Law360: Texas’ Operation Lone Star border security initiative has expanded over the past year despite courtroom setbacks revealing cracks in its legal foundation, and it appears poised to grow further unless the federal government steps in to confront it.
SCOTUS: “Wooden committed his burglaries on a single night, in a single uninterrupted course of conduct. The crimes all took place at one location, a one-building storage facility with one address. Each offense was essentially identical, and all were intertwined with the others. The burglaries were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means.”
SCOTUSblog: The Supreme Court on Wednesday [in oral arguments] returned to the scope of the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents, in a case arising from events surrounding an (unfairly) disparaged inn and suspicious characters near the U.S.-Canada border.
Lexis: As we noted above, while (b)(4) requires “changed country conditions,” (b)(3) does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.
Lexis: . After he pled guilty to first-degree home invasion, the Department of Homeland Security initiated removal. But the removal didn’t go as planned: DHS failed to show that Jasso was in fact removable, and the immigration judge terminated the proceeding. So DHS tried again. It started a second removal proceeding based on a new legal theory but the same underlying facts. The problem? The doctrine of claim preclusion prevents parties from litigating matters they failed to raise in an earlier case. Because claim preclusion barred the second removal proceeding, we grant the petition for review, vacate, and remand.
Reuters: A federal appeals court on Monday declined to dismiss an “unprecedented” criminal case filed during the Trump administration against a Massachusetts judge accused of impeding a federal immigration arrest of a defendant in her courtroom.
Law360: Sixteen attorneys general of Democratic-led states, including the District of Columbia, are defending a new Illinois law phasing out immigrant detention contracts and urging the Seventh Circuit to dismiss a challenge by two Illinois counties, saying the policy does not interfere with federal enforcement of immigration law.
NYT: People with health conditions that place them at high risk from Covid-19 have been denied access to coronavirus vaccine booster shots while in federal immigration detention, the American Civil Liberties Union said in a lawsuit filed on Tuesday.
Reuters: The U.S. Embassy in Havana announced on Thursday it would increase staffing and resume some visa processing in Cuba several years after the Trump administration slashed personnel at the facility following a spate of unexplained health incidents.
AILA: EOIR will open immigration courts in Hyattsville, Maryland, and Laredo, Texas, today, February 28, 2022. The Hyattsville and Laredo immigration courts will have 16 and 8 immigration judges, respectively. Both courts will hear transferred cases; EOIR is notifying parties whose locations have changed.
AILA: Due to conflict in both regions, DHS will extend and redesignate South Sudan for TPS for 18 months, and designate Sudan for TPS for 18 months. The extension and redesignation of South Sudan is in effect from 5/3/2022, through 11/3/2023. The memo details eligibility guidelines.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
USCIS: USCIS has clarified Form I-9 guidance related to Native American tribal documents. We also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the M-274, Handbook for Employers. USCIS has provided these updates to respond to customer needs.
Thanks for all you do for due process and fundamental fairness in America, Liz! And congrats again to both you and NIJC/Heartland Alliance on your new position!
My good friend Heidi Altman, Director of Policy at NIJC, should be delighted, as Liz is a “distinguished alum” of both the CALS Asylum Clinic at Georgetown Law (where Heidi was a Fellow) and my Refugee Law & Policy class. Liz also served as an Arlington Intern and a Judicial Law Clerk at the NY Immigration Court. Liz has been a “powerful force for due process, clear, analytical writing, and best practices” wherever she has been! So, I’m sure that will continue at NIJC! Clearly, Liz is someone who eventually belongs on the Federal Bench at some level.
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
Liz’s mention under “Litigation” of the Supremes’ decision in Wooden v U.S., where Justice Kagan for a unanimous Court interpreted the term “single occasion” broadly in favor of a criminal defendant, raises an interesting immigration issue.
Two decades ago, in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the BIA basically “nullified” the INA’s statutory exemption from deportation for multiple crimes “arising out of a single scheme of criminal misconduct.” Rejecting the 9th Circuit’s contrary ruling, the BIA essentially read the exception out of the statute by effectively limiting it to lesser included offenses.
How narrow was this interpretation? Well, in 21 years on the immigration appellate and trial benches, I can’t recall a single case where the “scheme” did not result in deportation under Adetiba. Taking advantage of the outrageous “doctrine of judicial task avoidance” established by the Supremes in the notorious “Brand X,”the BIA eventually took the “super arrogant” step of nullifying all Circuit interpretations that conflicted with Adetiba! Matter of Islam, 25 I&N Dec. 637 (BIA 2011).
Surprisingly, in my view, in his concurring opinion in Wooden, Justice Gorsuch actually applied the “rule of lenity” — something else the “21st Century BIA” has basically “read out of the law” in their haste to deport! Here’s what Justice Gorsuch said:
Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.7
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
As the ongoing (“backlog enhancing”) “Pereira fiasco” shows, the BIA has had little problem “blowing off” or distinguishing the Supremes to deport or deny when asked by DHS Enforcement to do so. Today’s BIA “rule” for interpreting supposedly “ambiguous” statutes is actually straightforward, if one-sided: Adopt whatever interpretation DHS Enforcement offers even if that means “taking a pass” on a better interpretation offered by the respondent. So, I’m sure that Garland’s current “Miller Lite” BIA will simply distinguish Wooden as dealing with statutory language different from the INA and ignore its broader implications if asked to do so by “their partners” at DHS Enforcement.
But, whether all Circuits will see it that way, and/or allow themselves to continue to be humiliated by “Brand X,” or whether the issue will reach the Supremes, are different questions. In any event, immigration advocates should pay attention to Wooden, even if the BIA is likely to blow it off.
The current Supremes don’t seem to have much difficulty jettisoning their own precedents when motivated to do so! Why they would continue to feel bound by the bogus “Chevron doctrine” or its “steroid laden progeny Brand X” to follow the interpretations of Executive Branch administrative judges on questions of law is beyond me! Somewhere Chief Justice John Marshall must be turning over in his grave!
Living 120 miles apart, family shares hopes and anxieties while navigating ‘chaotic’ resettlement process
Lamha Nabizada spent nearly six months at Fort McCoy, a 60,000-acre Army base in Monroe County, Wis., before she was relocated with part of her family to Rockville, Md. Here, she looks through the window of a hotel room on Feb. 22, 2022, during the family’s search for permanent housing. She is among 76,000 Afghans evacuated to the United States during the country’s largest resettlement operation since the Vietnam War. (Eman Mohammed for Wisconsin Watch)
By Zhen Wang February 28, 2022 Wisconsin WatchIn her final hours living at Fort McCoy, an Army base in rural Monroe County, Wisconsin, Lamha Nabizada searched for an interesting place to pose for a photo at this reporter’s request. The task wasn’t easy.“Everywhere is the same thing, same barrack,” the 27-year-old told Wisconsin Watch.Venturing outside into frigid air, she posed in front of a flagpole and gun turret.It was Feb. 6, the day before Nabizada and her 22-year-old brother Masroor would travel to Maryland — continuing a resettlement journey that began last August when the Taliban took over Afghanistan’s capital of Kabul. They were among tens of thousands airlifted from the country with passports, legal documents and little else.Nearly six months later, the siblings were among the last to leave Fort McCoy, which housed as many as 12,600 Afghans.
Lamha felt mixed emotions as she prepared to leave: hope for new opportunities and anxiety about moving to an unfamiliar place.
“I don’t know what will happen in the future,” she said.
On Feb. 15, Fort McCoy became the seventh of eight U.S. military installations to send its final evacuees to host communities. Four days later, the eighth base cleared out the last of the 76,000 total evacuees who arrived for the largest resettlement operation since the Vietnam War.
Through Feb. 23, Wisconsin had resettled about 820 of the 850 Afghan evacuees currently slated for the state, according to Bojana Zorić Martinez, director of the Wisconsin Department of Children and Families’ Bureau of Refugee Programs.
Zorić Martinez said serving so many people at once was difficult. Aside from housing, they need Social Security numbers, jobs, food and other basic items.
Evacuees are eligible to apply for benefits available to refugees, according to the federal Office of Refugee Resettlement. That includes job preparation, English language training and medical aid. They may also be eligible for other federal benefits such as Medicaid and food assistance.
Zorić Martinez said the system shrunk under Trump, who slashed the country’s refugee cap each year he was in office, which meant less money for resettlement agencies.
“We are now seeing the consequences of that,” she said.
Zhen Wang joined Wisconsin Watch as a reporting intern in May 2021. At UW-Madison, she is pursuing a master’s degree in journalism, honing her investigative journalism skills, and preparing herself for a career in health care journalism. She previously worked for the Guardian Beijing bureau and China Daily. Before joining the journalism industry, she worked in various sectors and obtained a master’s degree in international relations in New Zealand. She speaks Chinese and is a member of Asian American Journalists Association.
More by Zhen Wang / Wisconsin Watch
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Reprinted from Wisconsin Watch under Creative Commons License. Full story available at the link. Nice reporting by Zhen Wang!
Here are some additional quotes from Zhen’s article from my good friend and NDPA superstar Professor Erin Barbato of the U.W. Law Immigration Clinic, among the many clinical teams who have “stepped up” for Afghan refugees:
“The government has to provide more resources, if we’re going to ensure that everybody has their basic needs met during this transition time, and it’s wonderful to see people in the community coming together,” said Erin Barbato, director of the Immigrant Justice Clinic at the University of Wisconsin Law School. “But that’s not going to solve the problem for everybody.”
The legal clinic is helping evacuees file for asylum and training attorneys to represent them in that process — positions that are in short supply. Barbato and other immigration experts fear some people will fall through bureaucratic cracks unless the federal government takes action to stabilize the system.
. . . .
Barbato, the UW legal clinic director, said the two-year parolee status leaves evacuees vulnerable to future deportation — a potentially deadly proposition. The U.S. asylum program last year faced a backlog of nearly 413,000 applications.
Congress has historically passed such laws to protect evacuees from U.S. military conflict zones, including in Vietnam and Iraq.
Echoing immigration advocates and veterans, Barbato said an Afghan Adjustment Act, which has yet to be introduced in Congress, could pave a safer, quicker path to citizenship. Lawmakers must also inject more resources into the immigration bureaucracy, she added. How these resources are allocated will shape the fate of applicants who have waited years in the queue — as well as new Afghan arrivals.
Professor Erin Barbato Director, Immigrant Justice Clinic UW Law Photo source: UW Law
The CLAWmobile — America’s First Due Process Powered Vehicle, Piloted by Attorney Yousof “Joe” Nesari, will be spreading the message to the Commonwealth and beyond!
CANCELLATION & LIFE AFTER WINNING: The CLAW Campaign Kicks Off
Delivered by Paul Wickham Schmidt
CLAW Headquarters, Reston, Virginia
February 27, 2022
Thank you for inviting me this afternoon. I’m honored to be here. Beyond that, I wish to congratulate and thank Neela Nesari and the rest of you for your courage, dedication, and humanity in standing up and speaking out for social justice in America.
Of course, I will start out by giving you my “standard comprehensive disclaimer.” What I’m about to tell you represents solely my views and not the views or opinions of any individual, institution, organization, or group with which I am associated, have been associated in the past, or might associate with in the future!
My time on the stage is winding down. But yours, my friends, is just beginning. You are the ones who control your destinies and must decide what kind of world you want to live in and what you want to leave behind for the next generations.
Relief for families granted cancellation of removal is a “just cause” that should be a “no-brainer” in a fair, well-functioning, human-values-based society. That neither such badly-needed specific remedial changes nor long overdue “big picture” reforms to fix our broken and dysfunctional Immigration Courts, restore fairness and functionality to our shattered refugee and asylum programs, and make our legal immigration system robust, realistic, workable, and serving the national interest says something about our current national mood and our political leadership that should be quite concerning to you as the upcoming generation!
My friends, both our Immigration Courts and our democratic republic are in a grave existential crisis. There are powerful and well-organized forces with a very dark, exclusive, intolerant, sometimes belligerent vision of America’s future: one that reverses generations of human progress and knowledge and actively promotes intolerance, misinformation, dehumanization, and deconstruction of our democratic institutions and fundamental human values.
They actively promote an intentionally “whitewashed” version of American history: One that denies the ingenuity, creativity, and forced labor of generations of African Americans who literally built our country!It disregards the courage, tenacity, skill, and strength of Asian Americans who built our Transcontinental Railroad and literally brought our nation together. And, of course, it dismisses the legions of Hispanic Americans who have been “making America great” since before “America was America,” with their culture, hard work, determination, and commitment to the “real” American dream, not the “whitewashed” version. It basically devalues the essential contributions of almost all non-Western-European immigrants!
The future envisioned by these dark forces “x’es out” many, probably the majority, of you in this room. It says that their so-called individual rights to do as they please outweigh the common interests of society and humanity as a whole. Yet, few seem willing to challenge them and stand up for the rights and human dignity of“the others” which are being demeaned, devalued, and, in some cases, erased. Don’t let their darkness, willful ignorance, and often threatening demeanor be your future and that of generations to come.
Look around you here at the real history and the real America represented by this audience. The future is yours! Don’t let the forces of darkness and a “past that never was” deny your destiny!
Now is the time to take a stand for Due Process, fundamental fairness, human rights, human dignity, social justice, and human decency! Become the “next generation leaders” of the New Due Process Army and fight to make equal justice under law and the constitutional and human rights of everyone a reality rather than an unfulfilled promise! Due process forever!
Thanks again for inviting me and for listening.
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It was great to see in the audience some of the former students from my last “pre-pandemic in-person speech” to Professor Dree Collopy’s class at Washington College of Law at American University there as lawyers in the ranks of the NDPA!
One Year In: The Biden Administration and Asylum Policy
Developments in Fourth Circuit Case Law
Increasing Access to Pro Bono Counsel in Underserved Areas: Virginia as a Case Study
Working Across Disciplines: Best Practices for Attorneys and Mental Health Professionals in Asylum Seeker Evaluations
Country Conditions: From Page to Practice
CLE Credit and DOJ Accredited Representative Certifications
This event has been approved for 6.5 credit hours of CLE credit from Virginia and North Carolina. Attorneys seeking CLE credit must purchase tickets indicating that CLE credit is provided (indicated by “CLE” listed by the ticket type).
Attorneys from other jurisdictions who are not seeking CLE credit from Virginia or North Carolina are welcome to attend.
DOJ Accredited Representative certifications will be provided to those who register as DOJ Accredited Representatives seeking certification.
Zoom Webinar Information
Zoom information for the event will be sent to the email address used to register. For security reasons, we do not post the Zoom link information. All Zoom registration information will be provided in a separate email closer to the date of the event.
We would like to cordially invite you to the launch party of CLAW, “Cancellation and Life after Winning” at the CLAW headquarters located at 11710 Bowman Green Drive, Reston, VA 20190 on Sunday, February 27, 2022 at 4 pm.
What is CLAW?
CLAW is a campaign initiated by teenager and immigration activist, Neela Nesari. The campaign aims to bring about a change to increase the 4000 limitation cap on 240A cancellation cases.
Neela is initiating an awareness month about this issue in March of 2022 and needs your help. The goal is to educate, organize and advocate for legislative changes to the immigration system with respect to the defense of cancellation of removal.
We are very excited to announce that CLAW has secured the enthusiastic support of renowned former immigration judge and former chairman of the BIA, Honorable Judge Paul Schmidt, who will be the guest of honor at CLAW’s launch party.
We look forward to your support for this worthy cause. As immigration attorneys and advocates, we know too well that a 42b cancellation case doesn’t just end at the Individual Hearing and our clients face a long road ahead before they can become permanent residents. Why not do something about it?
*Practice outside of NY limited to Federal Immigration Law.
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Unfortunately, in the bizarre and counterintuitive world of U.S. immigration law and our broken Immigration Courts, winning your case, no matter how satisfying, is “only half the battle!” These amazing young people understand how unfair and counterproductive that is and are “walking the walk, not just talking the talk.” Come be inspired by folks who believe in and act for a “Better America” for all of us!
The Dehumanizing Work of Immigration Law is an analysis piece authored by immprof Jennifer M. Chacón (Berkeley) for the Brennan Center for Justice. It was part of a series of articles examining the “punitive excess that has come to define America’s criminal legal system.”
In her article, Chacón acknowledges that “our immigration laws are exceptionally harsh in ways that frequently defy common sense.” She notes that for many migrants “the notion that there is a ‘right way’ to immigrate is just not true.” Moreover, “our country has not always honored its own legal processes when immigrants are doing things ‘the right way.’” And, for those “long-time lawful permanent residents who have contact with the criminal legal system are often denied the chance to do things ‘the right way.’”
“Again and again,” Chacón writes, “notions of the rule of law are invoked to justify the sundering of families and communities that would, in other circumstances, seem unthinkable.”
Jennifer elegantly articulates a theme that echoes what “Sir Jeffrey” Chase and I often say on our respective blogs: It’s all about gratuitous cruelty and intentional dehumanization of “the other” — primarily vulnerable individuals of color!
But, it need not be that way! Undoubtedly, the current legislative framework is outdated, unrealistic, and often self-contradictory. Congress’s failure to address it with bipartisan, humane, common sense, practical reforms that would strengthen and expand our legal immigration system is disgraceful.
But, there are plenty of opportunities even under the current flawed framework for much better interpretations of law; more expansive, uniform, and reasonable exercises of discretion; creation and implementation of best practices; advancements in due process and fundamental fairness; drastic improvements in representation; improved expert judging; rational, targeted, “results-focused” enforcement; promoting accountability; and teamwork and cooperation among the judiciary, DHS, and the private/NGO/academic sectors to improve the delivery of justice and make the “rule of law” something more than the cruel parody it is today.
Historically, as Jennifer points out, courts have often aided, abetted, and sometimes even disgracefully and cowardly encouraged lawless behavior and clear violations of both constitutional and human rights. But, it doesn’t have to be that way in the future!
Folks like Trump, Miller, Sessions, Barr, Wolf, “Cooch,” Hamilton, McHenry, et al spent four years laser-focused on banishing every last ounce of humanity, fairness, truth, enlightenment, kindness, compassion, reasonableness, efficiency, rationality, equity, public service, racial justice, consistently positive use of discretion, practicality, and common sense from our immigration and refugee systems.
Biden and Harris promised dynamic change, improvement, and a return to a values-based approach to immigration. Once in office, however, they have basically “gone Miller Lite” —preferring to blame and criticize the Trump regime without having a ready plan or taking much positive action to bring about dynamic systemic improvements. In fact, as pointed out by Jennifer, Garland and Mayorkas have continued to apply, defend, and to some extent rely on the very vile policies they supposedly disavowed. Talk about disingenuous!
Drastic improvements in the current system are “out there for the taking,” with or without Congressional assistance. But, the will, skill, and guts to make the “rule of law” something other than an intentionally cruel, failed “throw away slogan” appears to be sorely missing from Biden Administration ldeadership!
Maybe, the beginning of Jennifer’s essay “says it all” about the abject failure of Garland and others to “get the job done:”
During his confirmation hearing to be attorney general, when asked about the Trump administration’s policy of separating children from their parents at the U.S.–Mexico border, Merrick Garland repudiated the policy, stating “I can’t imagine anything worse.”
Yet, now that he is confirmed, Attorney General Garland presides over an agency that represents the U.S. government in court arguing every day that parents should be separated from their children, brothers from sisters, grandchildren from grandparents.
Obviously, that’s the problem! Garland actually “can’t imagine” the human impact of government-imposed family separation! Nor can he “imagine” what it’s like to be caught up in his unfair, biased, and broken Immigration “Courts” as a party or a lawyer. The “retail level” of our justice system “passed him by” on his way to his judicial “comfort zone.”
“Justice” Star Chamber Style — “AG Garland ‘can’t imagine’ what it’s like to be caught up in the dysfunctional, abusive, and unfair ‘court system’ that he runs!”
Unless and until we finally get an Attorney General who has either experienced or has the actual imagination necessary to feel the daily horrors and indignity that our unnecessarily broken immigration justice system inflicts on real human beings, American justice and human values will continue to spiral downward! ☠️🤮
And, there will be no true racial justice in America without justice for immigrants!
The thread running through Whitehouse’s spoken essays is that the current 6-3 conservative majority on the court is no accident but the product of special interests and dark money – hundreds of millions of dollars in anonymous hidden spending.
The special interests are able to groom young judges, promote them in advertising campaigns and then try to influence them in legal briefs, all lacking in transparency. The outcome is a dire threat to the climate, reproductive rights and myriad issues that touch people’s everyday lives.
Whitehouse chose his title carefully. “It implies that this is not random,” he says. “This is not just, ‘Oh, we’re conservatives, and so we’re going to appoint conservative thinking judges,’ which is the veneer. They would like to maintain this is just conservatives being conservatives.”
Whitehouse suggests that the model of “agency capture”, when an administrative agency is co-opted to serve the interests of a minor constituency, was applied to the supreme court. “Once you’re over that threshold of indecency, it actually turned out to be a pretty easy target. The other construct to bear in mind is covert operations, because essentially what’s happened is that a bunch of fossil fuel billionaires have run a massive covert operation in and against their own country. And that’s a scheme.”
. . . .
Democrats have been criticised for being complacent as Republicans unspooled their 50-year campaign to capture the courts. Whitehouse agrees. “It’s way late. It’s really embarrassing how we let this dark money crowd steal a march on us.”
He observes: “From a political perspective it never mattered as much to the Democratic base as it did to the Republican base because we did not have the history of Roe versus Wade, Brown versus Board of Education [desegregating public schools] decisions that provoked massive cultural objections on the far right.
“So they got highly motivated and we did not but then once we saw this machinery begin to go in operation to capture the court, we never bothered to call it out either. It’s not just that our base didn’t care as much. It’s that we were sleeping sentries.”
Whitehouse is planning at least three or four more speeches about The Scheme. Like his climate series, he hopes that the message will get through: it is time to wake up.
“I hope there’ll be a more general understanding that what’s going on at the court has a lot less to do with conservatism than it has to do with capture and, with any luck, it might cause a bit of an epiphany with some of the judges that they don’t want to be associated with what they’re actually associated with. And the American public will see it for what it is and give us in politics more opportunities to administer a repair.”
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Read the complete report at the link.
Sen. Whitehouse’s reference to “agency capture” is a perfect descriptor of what has happened at EOIR and in our Immigration Courts. Remade, co-opted, and weaponized by Miller, Sessions, Barr, and Gene Hamilton during the Trump regime, the Immigration Courts now represent a nativist/restrictionist culture, philosophy, and approach to justice, including racial justice, that is far, far out of the legal mainstream.
It’s so far out of the mainstream that even the most conservative circuits and Trump judicial appointees occasionally hand Garland’s poorly performing BIA “its head” on sloppy, poorly reasoned, substandard performance. It’s also light years away from the restoration of the rule of law and humane values promised by Biden and Harris during their 2020 campaign!
“Agency capture” appears to be a “GOP specialty,” that Democrats lack. How many key immigration officials, political or “career,” at DHS and DOJ were “Obama holdovers?” How long did the few who weren’t replaced at the outset last? How much influence did they retain or exercise? Yet, Garland continues to operate the Immigration Courts with largely the same toxic culture and badly flawed personnel he inherited from Sessions and Barr. Nonsensical? Disgraceful? Dumb? You bet!
The situation is aggravated many times over because these aren’t “normal agency decisions.” No, they are essentially life or death decisions in a “traffic court setting” that affect humanity, our future as a nation, and often “dribble over” into discriminatory and biased approaches to minority populations and rights outside the field of immigration!
Another serious aggravating factor is the astoundingly dysfunctional and incompetent “Byzantine Empire Style” agency bureaucracy at EOIR which bears no resemblance to competent, professional court management and administration.
Not surprisingly, the latter are outside the DOJ’s skill set. Shockingly, however, A.G. Garland failed to “recognize the obvious” and to bring in the needed outside professional experts to straighten it out.
Even worse, although he essentially “wholly owns” the broken, anti-due-process immigration “judiciary,” Garland has ignored experts’ calls for replacement of the current precedent-setting BIA with judges who are recognized leaders and role models in due process and human rights in the immigration context.
Nor has he actively recruited and appointed enough experts with NGO, clinical, and other private sector backgrounds to Immigration Judge positions. Further, he has failed to develop and implement a transparent, merit-based judicial selection and retention program to “re-compete” the many “new” IJ positions that were created and maliciously used by Sessions and Barr to “pack” EOIR with anti-asylum bias, often involving judges without expertise or with disturbingly thin due-process/fundamental fairness credentials.
Developing a fair, transparent, merit-based system, with outside input, to weed-out underperforming judges in a competitive process and, where warranted, to replace them with some of the brilliant and high-achieving immigration/human rights potential judicial talent now “out there in the market place” but largely ignored by the Biden Administration should have been high on Garland’s list. The process and criteria by which these life or death judicial positions are filled remains largely a mystery shrouded in opaque bureaucracy and with no input from those who actually have to practice before EOIR or who have been researching and documenting the abject, deadly failures of the current system!
With due respect, I think Senator Whitehorse needs to focus some of his attention and ire on the disgraceful performance of the U.S. Immigration Courts under Garland. Unlike the Article IIIs, this Federal Court system could and should have been majorly reformed, restructured, and vastly improved with a more enlightened, courageous, due-process oriented approach by DOJ.
Why doesn’t Senator Whitehouse call up his former Senate colleague VP Harris, who has done a “disappearing act” on immigration and human rights following her tone-deaf excursion to the Northern Triangle? Is he teaming with Chair Lofgren to introduce the Senate version of her Article I Immigration Court Bill? Some of the foregoing could be even more effective in “raising consciousness” and promoting constructive reform than giving speeches to an empty Senate Chamber!
The result of a reformed U.S. Immigration Court should be a “Model Federal Judiciary” — one laser-focused on fairness, scholarship, timeliness, respect, teamwork, due process, fundamental fairness, and best practices! Indeed, that’s what all Federal Courts should be, but are not right now. Not by a long shot!
The Immigration Courts could and should be a training and development ground for a diverse, high-functioning, practical, due-process-oriented Federal Judiciary all the way up to the Supremes — where failure by right-wing ivory-tower jurists who live “abovethe fray” to understand the reality of our broken Immigration Courts and to courageously vindicate the legal, constitutional, and human rights of abused and vulnerable migrants is literally destroying our republic.
That Garland and the Biden Administration generally are squandering this opportunity is as inexplicable as it is inexcusable! Perhaps Sen. Whitehouse can “light a fire!” 🔥
On the line are millions of futures. Undocumented immigrants who fear being split from their American children and spouses, people facing persecution and death in their countries of origin, or those being sent to countries they haven’t seen in decades are all fighting for fair play and often literally their lives in courts ill-equipped to do them justice.
“Let’s make it absolutely clear: due process is suffering,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute. “There’s just no way around that.”
Chishti said he sees all the hallmarks of a strong administrative law system suffering in the nation’s immigration courts, which are housed under the Department of Justice in the executive branch of the federal government, not within the judicial branch.
“It is a system in crisis,” he said.
After Trump made hardline anti-immigration policies pivotal to his 2016 presidential campaign, he flooded courts with judges more inclined to order deportations, Reuters reported.
His administration hired so many new immigration judges so hastily that the American Bar Association warned of “under-qualified or potentially biased judges”, many of whom had no immigration experience.
And as officials such as then-attorney general Jeff Sessions made sweeping proclamations that “the vast majority of asylum claims are not valid”, judges simultaneously confronted performance metrics demanding they each race through at least 700 cases a year.
People ranging from asylum seekers forced to wait in Mexico to unaccompanied children crossing the border on foot, to longtime undocumented residents with families stateside end up appearing in court, often without attorneys to help them parse the country’s byzantine laws.
In a process smacking of a zip code lottery, one judge in New York may grant nearly 95% of asylum petitions while colleagues in Atlanta almost universally deny similar requests, creating a patchwork of standards.
. . . .
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Read Alexandra’s full report at the link.
Garland’s stubbornly indolent approach to racial justice and due process at “Justice” endangers the lives of millions of vulnerable humans! PHOTO: Wikipedia Commons
Not news to Courtside readers or the millions whose lives and futures are caught up in Garland’s totally dysfunctional morass! And, that doesn’t even include hundreds of thousands of migrants orbited to danger under bogus “border closure” gimmicks that Garland and his ethically-challenged DOJ continue to defend!
Honorable Joan Churchill Retired U.S. Immigration Judge Member Round Table of Retired Judges
Many thanks to Judge Joan A. Churchill for spearheading this effort and for her many years of leadership and tireless dedication to the Article I Movement!
THE ROUND TABLE OF FORMER IMMIGRATION JUDGES February 18, 2022
The Round Table of Former Immigration Judges, composed of 52 for- mer Immigration and Appellate Immigration Judges, wholeheartedly endorses H.R. 6577. We urge its passage.
Members of the Round Table of Former Immigration Judges were appointed by and served under both Democratic and Republican administrations. Our periods of service on the bench span 1980 through December 2021. As former Immigration Judges, we are acutely aware of the systemic flaws in the placement of the Immigration Court within the Department of Justice, our nation’s highest law enforcement agency. Ever aware of our duty to exercise our independent judgment to accord due process, we conscientiously strove to do so throughout our years on the bench. However, challenges to our ability to do so were ever present. While we felt that we individually were administering impartial justice, we could not overcome the appearance of partiality, created by the structural flaw in the system, in the eyes of the parties and public.
Establishment of an independent Immigration Court under Article I of the Constitution is long overdue. On March 1, 1981 the Congressionally created bipartisan Select Commission on Immigration & Refugee Policy, issued its Final Report, entitled U. S. Immigration Policy and the National Interest, calling for creation of an Article I Immigration Court :
“The Select Commission recommends that existing law be amended to create an immigration court under Article I of the U.S. Constitution.” [pp. xxviii-xxix]
The Select Commission, which began its work in 1979, undertook an exhaustive study which ultimately identified and recognized the structural flaw which H.R. 6577 will finally correct. Steps taken by successive ad- ministrations since 1981 have not fixed the problem. Rep. Bill McCollum, (R FL), a prior Chair of the House Immigration Subcommittee, introduced several Article I Immigration Court bills over the years. It is not a partisan issue. The structure simply does not allow for truly impartial adjudication. Political policy making functions should not be commingled with adjudicative functions. Impartial adjudication is essential for due process. Congressional action is necessary to eliminate the systemic structural flaw. Passage of H.R. 6577 will do that. H.R. 6577 will establish a judicial structure for adjudicative immigration proceedings that will assure due process, an American value enshrined in the U.S. Constitution. We applaud the intro- suction of H.R. 6577 and look forward to its enactment.
“Join the ABA Commission on Immigration for a 3-part series on the Mechanics of Immigration Court. This series covers the nuts and bolts of how to practice in immigration court. Part I takes an in depth look at the Master Calendar Hearing and Filing Applications for Relief with Immigration Court. Topics to be covered include reviewing the Notice to Appear, getting your client’s court file, how to prepare for the initial Master Calendar Hearing and what to expect, best practices for appearing via WebEx and Open Voice, and a brief overview of common forms of relief and prosecutorial discretion. This webinar is designed for pro bono attorneys and immigration practitioners who are new to immigration law, or for anyone who wants to brush up on their practical skills.”
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PLAYING IN HOME, OFFICE, AND CLASSROOM THEATERS NOW!
RATED G — Suitable & Highly Recommended for All Audiences
Win cases, save lives, achieve racial justice, fulfill the wrongfully withheld promises of the U.S. Constitution, force change into a deadly and dysfunctional system that has been weaponized to “Dred Scottify” the other and degrade humanity!
Make an “above the fray” AG finally pay attention to and address the disgraceful, due-process-denying, wasteful mess in “his wholly-owned parody of a court system.” This is what being a lawyer in 21st Century America is all about!
The video is 1 hour and 15 minutes!
“If you can win a case in this system, everything else in law, indeed in life, will be a walk in the park!” — Paul Wickham Schmidt, ImmigrationCourtside
Efiling is not permitted for cases with a preexisting paper file, but all new cases moving forward require efiling with ECAS.
Once a case is fully ECAS, you do not need to serve ICE separately. However, you still need to submit a certificate of service that lists ECAS as the means of service. eService/mail can still be used on paper files. eService is the only method of filing for PD requests.
Also, EOIR apparently has not come up with a system for filing motions to substitute counsel in ECAS. The system physically will not let you file a new primary E-28 if there already is an attorney, and you cannot file a motion without an E-28. The workaround so far has been to file a non-primary E-28 and then to ask the court to change it to primary. Hopefully, EOIR will fix this soon.
Updated Legal Assistant Directories for NYC (attached)
Reuters: The Biden administration will place hundreds of migrants caught at the U.S.-Mexico border on house arrest in the coming weeks as it seeks cheaper alternatives to immigration detention, according to a notice to lawmakers and a U.S. Department of Homeland Security (DHS) official. A 120-day pilot program will be launched in Houston and Baltimore, with 100-200 single adults enrolled in each location, according to the notice, which was sent by U.S. Immigration and Customs Enforcement (ICE) and reviewed by Reuters. See also Immigrant Rights Organizations Call on Biden to Stop Expansion of Surveillance and End the Immigration Detention System as a Whole.
TRAC: As of the end of January 2022, the pace of Immigration Court work continues to lag as a result of the pandemic. There have been not only fewer case completions, but the average time required to dispose of each case has doubled since before the pandemic began.
LAA Weekly: Valentine’s Day has been strategically selected for the “Day Without Immigrants” protest, as it is a day where an abundance of consumer spending occurs, through labor that is often carried out by immigrants.
NYT: These migrants were instructed to register with Immigrations and Customs Enforcement within 60 days to complete the process the border officials started. But in some parts of the country, local ICE offices were overwhelmed and unable to give them appointments. So the Haitian family and other new arrivals have spent months trying in vain to check in with ICE and initiate their court cases.
AP: The new statement unveiled Wednesday by Citizenship and Immigration Services Director Ur Jaddou is symbolic but somewhat restores previous language after the agency removed a reference in 2018 to the U.S. being a “nation of immigrants.”
Law360: A Washington federal judge has ruled that a Salvadoran citizen’s U.S. naturalization application was properly denied because of her admission that she distributes marijuana as co-owner of a state-licensed dispensary.
Law360: The U.S. Department of Justice’s Executive Office for Immigration Review apologized on Tuesday to an attorney after asking her to delete tweets about immigration court hearings for people enrolled in the controversial “Remain in Mexico” program.
WaPo: A patchwork of federal aid kept many families afloat during the pandemic, but families with undocumented parents did not qualify for most of it, including unemployment insurance, the stimulus payments, Medicaid and food stamps.
LITIGATION/CASELAW/RULES/MEMOS
AO issues NOID for Afghan Who Worked for U.S.
Boston AO: A NOID from the asylum office stated that an individual who worked for the U.S. government as a mechanic had not demonstrated a fear of future persecution based on his imputed political opinion. The AO held there was insufficient evidence the Taliban was or would become aware of his imputed political option. The AO also stated the Taliban does not have the capability to persecute all former employees of the U.S. and the applicant had not demonstrated similarly situated people were being targeted. Counsel has submitted a detailed rebuttal with testimony from a US military official, and the applicant’s mother was granted asylum by a different officer.
AILA: A federal district court vacated the final rules “Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications” and “Asylum Application, Interview, and Employment Authorization for Applicants.” (AsylumWorks v. Mayorkas, 2/7/22)
NYLAG: Under the settlement, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. Posting will begin in October 2022 and will be phased in over several years.
Law360: The Second Circuit on Wednesday granted a Nigerian man’s petition for review of a Board of Immigration Appeals order that denied him asylum, finding that the agency made several legal and procedural errors and did not adequately explain its reasons.
Law360: The federal government properly charged a Nigerian man as inadmissible to the U.S. rather than removable, because his entry to the country on parole constituted an arrival despite his previous admission, the Third Circuit ruled Friday.
Lexis: We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed pre-waitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist.
Law360: The Ninth Circuit invalidated the subsection of a law that makes it a crime to encourage unlawful immigration, ruling Thursday it is overbroad and covers speech that is protected by the First Amendment.
Law360: The Board of Immigration Appeals need only to consider the possibility — not the reasonableness — of an immigrant’s safe relocation back to their home region when weighing protections under the Convention Against Torture, the Ninth Circuit ruled Wednesday.
Law360: A New Jersey federal judge signed off Wednesday on a class action settlement that would prevent the U.S. Citizenship and Immigration Services from refusing to place young immigrants on the path to a green card based on Garden State family court findings.
Law360: U.S. Customs and Border Protection is marking the entry records of certain foreign executives’ spouses to show that they are immediately eligible to work in the U.S. without going through the monthslong process of obtaining a work permit.
AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.
AILA: EOIR updated its Operation Status website with information clarifying that alternate filing locations are designated for the purpose of filing emergency motions and explaining how it will treat other filings if a court is closed.
AILA: USCIS updated policy guidance addressing VAWA petitions, specifically changing the interpretation of the requirement for shared residence. The guidance also affects use of INA 204(a)(2), implements the decisions in Da Silva v. Attorney General and Arguijo v. United States, and more.
AILA: DHS, in partnership with the Department of Veterans Affairs and Defense, launched an online center to consolidate resources for noncitizen service members, veterans, and their families, including a request form for current or former service members seeking return to the U.S. after deportation.
USCIS: We are updating our interpretation of the requirement for shared residence to occur during the qualifying spousal or parent-child relationship. Instead, the self-petitioner must demonstrate that they are residing or have resided with the abuser at any time in the past.
We are also implementing nationwide the decisions in Da Silva v. Attorney General, 948 F.3d 629 (3rd Cir. 2020), and Arguijo v. United States, 991 F.3d 736 (7th Cir. 2021). Da Silva v. Attorney General held that when evaluating the good moral character requirement, an act or conviction is “connected to” the battery or extreme cruelty when it has “a causal or logical relationship.” Arguijo v. USCIS allows stepchildren and stepparents to continue to be eligible for VAWA self-petitions even if the parent and stepparent divorced.
After two plus decades of largely wasted time, effort, and resources, EOIR finally moves into the era of E-Filing!
Elizabeth notes one of the “initial workarounds” for motions to substitute counsel. While early glitches are to be expected in any system, this one seems odd because: 1) the system has supposedly been extensively “beta tested;” and 2) motions to substitute counsel have to be one of the most common motions filed at EOIR (particularly with cases often taking many years to complete with the ever-growing 1.6 million case backlog.)
I’d be interested in getting any “practitioner feedback” on how this system (applicable only to newly filed NTAs) is working out for them. You can just put in the “comments box” for this post.
Speaking of backlog, this excellent recent study and analysis from CMS (under “Friday Feb. 11” above) certainly suggests that the majority of the “aged cases” being “warehoused” by Garland’s EOIR relate to law-abiding long-term residents who are already firmly grounded in our society and should be prime candidates for “non-priority” status and removal from the dockets.
Undocumented immigrants contribute to every aspect of the nation’s life.16 During the COVID-19 pandemic, the case for legalization has become increasingly evident to the public and policymakers due, in part, to the fact that a remarkable 74 percent of the nation’s 7.3 million undocumented workers meet DHS’s definition of essential workers (Kerwin and Warren 2020). As the nation ages and its population over age 65 exceeds that under age 15 (Chamie 2021), the need for immigrant workers will only increase. US fertility rates fell for five consecutive years prior to the COVID-19 pandemic, and the US birth rate decreased by four percent in 2020 (Barroso 2021).17
Legalization programs benefit the larger society: they “raise wages, increase consumption, create jobs, and generate additional tax revenue” (Hinojosa-Ojeda 2012, 191).18 One study has estimated that broad immigration reform legislation, including a legalization program and a flexible, rights-respecting, legal immigration system, would add $1.5 trillion to the US gross domestic product over 10 years (ibid., 176). Another study found that a legalization program would increase the productivity, earnings, and taxes paid by the legalized, resulting in increased contributions to the Social Security (SS) program, which would more than offset the SS benefits that they would receive (Kugler, Lynch and Oakford 2013).
Indeed, the data in the CMS study confirms what many of us have suspected for a long time: That deportation of many of the individuals now occupying the Immigration Court’s mind-boggling docket backlog actually would be a counterproductive “net loss” for the U.S.!
So, why are Garland and Mayorkas letting the backlog fester and ooze disorder and injustice? ☠️ Rather than using largely self-created backlogs to support more “enforcement gimmicks” purporting to lead to theforced removal of many productive members of our society, EOIR is long overdue for some form of the “Chen Markowitz Plan” in anticipation of the types of ameliorative legislation outlined in the CMS study.
Donald M. Kerwin Executive Director Center for Migration Studies — He and his friends at CMS have some great ideas on immigration and human rights backed by some of the best scholarship around! Why are Garland, Mayorkas, and others “tuning them out” while they continue to bungle immigration policy, degrade human rights, and undermine our legal system?
Garland’s disgraceful failure to put a “Progressive A-Team” in charge at EOIR continues to drag down our entire justice system.
Note that Sessions and Barr had no trouble and no hesitation installing their “Miller Time” restrictionist team at DOJ and EOIR despite almost universal outrage and protests from human rights advocates, immigration experts, and some legislators!
Why do Dems keep appointing AG’s who are too “tone deaf,” clueless, and timid to fully “leverage” the almost unlimited potential of reforming EOIR to be a font of due process, best practices, and scholarly, efficient judging?
Why do Dems prefer the equal and racial justice “disaster zone” that they have helped to create, aided, and abetted over the past two decades of abject failure and disorder at EOIR?
There is a reason why Chair Lofgren and others on the Hill are pushing for Article I! But, that in no way diminishes or excuses the failure of Garland to make available due process and best practices reforms at EOIR, including a major shakeup of “Trump holdover” judges and managers who aren’t up to the job of running a system “laser-focused” on due process and fundamental fairness!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
The problem is very obvious: The “practical scholars” and widely respected international experts in asylum law who should be drafting gender-based regs and issuing precedents as appellate judges @ EOIR remain “frozen out” by Garland and the Biden Administration. Meanwhile, those who helped carry out the Miller/Sessions misogynistic policies of eradicating asylum protection for women of color not only remain on the bench but still empowered by Garland to issue controlling interpretations of asylum law.
Deadly Inertia: Needless Delay of “Particular Social Group” Regulations Puts Asylum Seekers at Risk
February 10, 2022
On February 2, 2021, President Biden issued an executive order (“EO”) which directed executive branch agencies to review and then take action on numerous aspects of our shattered asylum system.1 Of particular interest to the Center for Gender & Refugee Studies (CGRS), and many asylum seekers, legal experts, and allies, was a provision ordering the Departments of Justice and Homeland Security to conduct a comprehensive examination of whether U.S. treatment of asylum claims based on domestic or gang violence is consistent with international standards, and to propose a joint rule on the meaning of “particular social group,” as that term is derived from international law (emphasis added).2
The deadlines set by the President – August 1, 2021 for the examination of current law on domestic violence and gang claims, and October 30, 2021 for the proposed regulations on particular social group – have come and gone. We are concerned that the administration has offered no indication of its progress on what should be a simple task, given that international law and authoritative international standards on particular social group are clear.3
This reference guide explains why regulations on particular social group are important, why this legal issue has become so contentious, and why there is no good reason for the delay in proposing regulations. We point out that there is a clear path forward for the United States to realign its treatment of asylum claims with established international standards, which is precisely what the EO mandates.
Why are regulations on particular social group important?
While “particular social group” may sound like an arcane topic in the notoriously complex area of asylum law, there is a reason it merited the President’s attention in an EO signed just two weeks after he took office.4 Persecution on the basis of membership in a particular social group is one of only five grounds for refugee status in U.S. and international law and has become the most hotly contested asylum law issue in the United States.
Why has particular social group jurisprudence become so contentious in the United States?
First, the phrase “particular social group” is less intuitively clear than the other grounds for asylum of race, religion, nationality, and political opinion. This ground is understood to reflect a desire on the part of the treaty drafters – and U.S. legislators who incorporated the international refugee definition into our own immigration law – to protect those who don’t fit neatly into the other four categories, and to allow asylum protection to evolve in line with our understanding of human rights. Such refugees might include, for example, women fleeing domestic violence, or LGBTQ+ people persecuted because they do not conform to social norms regarding sexual orientation or gender identity. They might be people fleeing violent retaliation by criminal gangs because they
200 McAllister Street | San Francisco, CA 94102 | http://cgrs.uchastings.edu
reported a crime or testified against a gang member. Or they might simply be related to someone who has defied a gang, and that alone makes them a target.
These people are clearly facing enormous harm, and equally clearly belong to a particular social group under a correct interpretation of the law. 5 But merely belonging to a particular social group does not result in being granted asylum. Only if a person meets all the other elements of the refugee definition, including the heavy burden of showing their group membership is a central reason they will be targeted, will they obtain protection in the United States.
Second, some policymakers and adjudicators fear that if particular social group claims qualify for protection, the “floodgates” will open. The Department of Justice’s Board of Immigration Appeals (BIA) established the legal test for particular social group in 1985 in Matter of Acosta (see below).6 But beginning in 2006, the BIA altered the Acosta test by imposing additional requirements that are nearly impossible to meet.7 The result is that with only one exception, no new particular social groups from any country, no matter how defined, have been accepted in a published BIA decision since that time.
But there is no evidence to support the “floodgates” concern. Decades ago, when women who fled female genital cutting/mutilation were first recognized as a particular social group, some people argued that the United States would be inundated with such claims.8 Those fears never materialized. History shows, and the governments of both the United States and Canada acknowledged at the time, that acceptance of social group claims does not lead to a skyrocketing number of applicants.9
Third, asylum law, including the legal interpretation of particular social group, has been politicized. As part of an overtly anti-immigrant agenda, some politicians have seized upon the floodgates myth to promote increasingly restrictive policies and legal interpretations that depart from international standards. Politically oriented interference with asylum law reached new lows under the previous administration, most notably in 2018 when former Attorney General Sessions overruled his own BIA to issue his unconscionable decision in Matter of A-B-.10
Matter of A-B- was so widely reviled and justly condemned that all major Democratic candidates seeking their party’s presidential nomination in the last election promised to reverse the decision. Doing so was part of candidate Biden’s campaign platform.11 As President he made good on this promise by including the legal questions of domestic violence, gang brutality, and particular social group in the February 2021 EO.
Furthermore, and very much to his credit, Attorney General Garland granted CGRS’s request as counsel to vacate Matter of A-B- in June 2021.12 The law now stands as it did before Sessions’ unlawful interference, with the key precedent case Matter of A-R-C-G-13 recognizing a certain defined particular social group that may provide the basis for asylum for some domestic violence survivors.
However, as explained above, the problem goes beyond Sessions’ decision in Matter of A-B- and stretches back at least as far as 2006, when the BIA began to encumber particular social group claims with additional legal hurdles. As correctly noted in the EO, it is necessary to assess whether U.S. law concerning not only domestic and gang violence claims, but all claims based on particular
2
social group, is consistent with international law. Fortunately there is ample international guidance, which is itself largely based on Acosta, on this exact question.
So why the delay in proposing new regulations?
We can think of no good reason for the agencies’ delay in proposing new regulations on particular social group. From the perspective of both binding international law and authoritative international standards, each of which are named as the framework for particular social group regulations in the EO, the legal analysis is not at all complicated.
To begin with, this is not a new area of the law. The Convention Relating to the Status of Refugees, the source of the refugee definition in which the phrase appears, was drafted in 1951. Our domestic law followed suit in the 1980 Refugee Act. As noted above, the key BIA precedent case interpreting particular social group, Matter of Acosta, was decided in 1985.14 The UN Refugee Agency’s (UNHCR) guidelines on particular social group, which adopt Matter of Acosta, were issued 20 years ago, in 2002.15
Making the job of proposing regulations even simpler, international guidance is clear. It is critical to note that as an inter-governmental organization, UNHCR routinely takes the concerns of governments, including the United States, into account in crafting its legal advice. UNHCR’s guidelines on particular social group were drafted only after a thorough review of State practice, including U.S. law, and an extensive process of external expert consultations with government officials and judges in their personal capacities, academics, and practitioners.16 The consultations process began with a discussion paper on particular social group drafted by a leading U.S. scholar who had previously served as Immigration and Naturalization Service General Counsel.17
How should the United States interpret particular social group to be consistent with international law?
The United States should adopt the “immutability” standard that the BIA set forth in Matter of Acosta, with an alternative – not additional – test of “social perception” which was initially developed by courts in Australia.18 The Acosta test rests on the existence of immutable or fundamental characteristics such as gender to determine whether there is a particular social group. What must be discarded are the BIA’s extraneous requirements of “particularity” and “social distinction.” They have no basis in international law, are not consistent with international standards, are not compelled by the text of the statute, and are not coherent or internally logical. They have themselves spawned an enormous number of confused and confusing cases, including at the federal courts of appeals level, as judges attempt to apply them to real world cases.19
Key Democratic members of Congress with deep knowledge on refugee issues have taken this position, which is consistent with UNHCR’s views. The Refugee Protection Act of 2019, for example, reflects international guidance in its clarification of particular social group.20 Then-Senator Kamala Harris was one of the bill’s original cosponsors.
Additionally, in response to the EO, U.S. and international legal experts have explained that Matter of Acosta provided a workable test, that the BIA’s additional requirements distorted U.S. law in violation
3
of international standards, and that a return to Acosta would be consistent with international standards and offer an interpretation most faithful to the statutory text.21
Why does it matter?
Lives hang in the balance. Women who have survived domestic violence, and all other asylum applicants who must rely on the particular social group ground, are stuck on a deeply unfair playing field. Existing law, even with the vacatur of Matter of A-B-, gives far too much leeway for judges to say no to valid claims. For people wrongly denied protection, deportation can be a death sentence.22
We are concerned that the delay in proposing particular social group regulations reflects an unwillingness on the part of some key actors within the administration to accept that the United States is bound by international law and should realign itself with international standards. The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.
To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.
1 Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, Feb. 2, 2021, 86 Fed. Reg. 8267 (Feb. 5, 2021).
3 Instead, on the one-year anniversary of the EO, USCIS Director Ur Jaddou held a virtual briefing on USCIS’s progress on this and three other immigration-related EOs, but provided no substantive details.
4 The EO otherwise encompasses the enormous operational, logistical, foreign policy, development, and other challenges required to create a comprehensive regional framework to address root causes, manage migration throughout North and Central America, and provide safe and orderly processing of asylum seekers at the U.S. border.
5 For example, when Harold Koh, a senior State Department advisor, resigned in October 2021 in protest over the expulsion of Haitian and other asylum seekers, he wrote: “Persons targeted by Haitian gangs could easily have asylum claims as persons with well-founded fears of persecution because of their membership in a ‘particular social group’ for purposes of the Refugee Convention and its implementing statute. Indeed, this is precisely the issue that faces the interagency group on joint DOJ/DHS rulemaking pursuant to President Biden’s February 2, 2021 Executive Order, which directed examination of whether
2 EO, Sec. 4(c) Asylum Eligibility. The Attorney General and the Secretary of Homeland Security shall:
(i) within 180 days of the date of this order, conduct a comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards; and
(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in
8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
4
the United States is providing appropriate asylum protection for those fleeing domestic or gang violence in a manner consistent with international standards.’” See https://www.politico.com/f/?id=0000017c-4c4a-dddc-a77e-4ddbf3ae0000.
6 19 I&N Dec. 211 (BIA 1985).
7 Stephen Legomsky and Karen Musalo, Asylum and the Three Little Words that Can Spell Life or Death, Just Security, May 28,
2021, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. 8 Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).
9 Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action?, 14 Va. J. Soc. Pol’y & L. 119, 132-133 (2007), available at: https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1560&context=faculty_scholarship.
10 27 I&N Dec. 316 (A.G. 2018). The applicant was a domestic violence survivor whose asylum claim based on particular social group had been granted by the BIA.
11 “The Trump Administration has … drastically restrict[ed] access to asylum in the U.S., including … attempting to prevent victims of gang and domestic violence from receiving asylum [.] Biden will end these policies [.]” See https://joebiden.com/immigration/.
12 28 I&N Dec. 307 (A.G. 2021). He also vacated other problematic decisions that touched on particular social group and gender claims. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021); Matter of A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021).
15 UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02, available at: https://www.refworld.org/docid/3d36f23f4.html.
16 UNHCR, Global Consultations on International Protection, Update Oct. 2001, available at: https://www.unhcr.org/3b83c8e74.pdf.
17 T. Alexander Aleinikoff, “Protected Characteristics and Social Perceptions: An Analysis of the Meaning of ‘Membership of a Particular Social Group’”, in Refugee Protection in International Law: UNHCR’s Global Consultations on International
Protection (Feller, Türk and Nicholson, eds., 2003), available at: https://www.refworld.org/docid/470a33b30.html.
18 This is the approach recommended by UNHCR, n.15 above.
19 Legomsky and Musalo, Asylum and the Three Little Words that Can Spell Life or Death, n. 7 above, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. See also, Sabrineh Ardalan and Deborah Anker, Re-Setting Gender-Based Asylum Law, Harvard Law Review Blog, Dec. 30, 2021, available at: https://blog.harvardlawreview.org/re-setting-gender-based-asylum-law/.
21 Scholars letter to Attorney General Garland and DHS Secretary Mayorkas, June 16, 2021, available at: https://cgrs.uchastings.edu/sites/default/files/2021.06.16_PSG%20Scholars%20Letter.pdf. See also, letter to Attorney General Garland and DHS Secretary Mayorkas, May 27, 2021, signed by 100 legal scholars discussing the “state protection” element of the proposed regulations, available at: https://cgrs.uchastings.edu/sites/default/files/Law%20Scholars%20State%20Protection%20Letter%205.27.21%20%28FINAL%2 9.pdf.
22 When Deportation Is a Death Sentence, Sarah Stillman, The New Yorker, January 8, 2018, available at: https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence.
20 The Refugee Protection Act of 2019, Sec. 101(a)(C)(iii) reads: “the term ‘particular social group’ means, without any additional requirement not listed below, any group whose members—
(I) share—
(aa) a characteristic that is immutable or fundamental to identity, conscience, or the exercise of human rights; or (bb) a past experience or voluntary association that, due to its historical nature, cannot be changed; or
(II) are perceived as a group by society.”
See https://www.congress.gov/bill/116th-congress/senate-bill/2936/text?r=4&s=1#toc- idA272A477BC814410AB2FF0E6C99E522F.
5
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“Sir Jeffrey & Me Nijmegen, The Netherlands 1997 PHOTO: Susan Chase
You can check out what “Sir Jeffrey” and I had to say back in June 2021 here:
Unfortunately, my commentary then remains largely true today:
Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.
Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!
The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.
There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!
Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.
Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis.
No regulation can bring decisional integrity and expertise to a body that lacks both!
As the CGRS cogently says at the end of the above posting:
The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.
To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.
If you follow some of the abysmal anti-asylum, poorly reasoned, sloppy results still coming out of Garland’s BIA and how they are being mindlessly defended by his OIL, you know that a “principled application” of asylum law to protect rather than arbitrarily reject isn’t in the cards! Also, as I have pointed out, even if there were a well written reg on gender based asylum, you can bet that the “Miller Lite Holdover BIA” would come up with intentionally restrictive interpretations that many of the “Trump-era” IJs still packed into EOIR would happily apply to “get to no.”
You don’t turn a “built and staffed to deny in support of a White Nationalist agenda agency” into a legitimate court system that will insure due process and fair treatment for asylum seekers without replacing judges and bringing in strong courageous progressive leaders.
That’s particularly true at the BIA, where harsh misapplications of asylum law to deny worthy cases has been “baked into the system” for years. And, without positive precedents from expert appellate judges committed to international principles and fair treatment of asylum seekers in the U.S., even a well-drafted reg won’t end “refugee roulette.”
By this point, it should be clear that the Biden Administration’s intertwined commitments to racial justice and immigrant justice were campaign slogans, and not much more. So, it will be up to advocates in the NDPA to continue the “relentless fight” to force an unwilling Administration and a “contentedly dysfunctional” DOJ that sees equal justice and due process as “below the radar screen” to live up to the fundamental promises of American democracy that they actively betray every day!
What fun, sending Black Cameroonian refugees back to rape, torture, and possible death! We don’t need to know much asylum law or real country conditions here at EOIR. We make it up as we go along. And, Judge Garland just lets us keep on playing “refugee roulette,” our favorite game! https://www.flickr.com/photos/rasputin243/ Creative Commons License
Nearly all of the deported people interviewed had fled Cameroon between 2017 and 2020 for reasons linked to the crisis in the Anglophone regions. Human Rights Watch research indicates that many had credible asylum claims, but due process concerns, fact-finding inaccuracies, and other issues contributed to unfair asylum decisions. Lack of impartiality by US immigration judges – who are part of the executive branch, not the independent judiciary – appeared to play a role. Nearly all of the deported Cameroonians interviewed – 35 of 41 – were assigned to judges with asylum denial rates 10 to 30 percentage points higher than the national average.
. . . .
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The complete report gives a totally damning account of EOIR’s incompetence, ignorance of asylum law, poor decision making, “rigged” assignment of bad judges, and systemic bias directed against asylum seekers, primarily people of color. Although human rights conditions have continued to deteriorate in Cameroon, asylum grant rates have fluctuated dramatically depending on how the political winds at DOJ are blowing.
For example, judges denying asylum because of imaginary “improved conditions” in Cameroon falls within the realm of the absurd. No asylum expert would say that conditions have improved.
Yet, in a catastrophic ethical and legal failure, there is no BIA precedent “calling out” such grotesque errors and serving notice to the judges that it is unacceptable judicial conduct! There are hardly any recent BIA published precedents on granting asylum at all — prima facie evidence of the anti-asylum culture and institutional bias in favor of DHS Enforcement that Sessions and Barr actively cultivated and encouraged!
Even more outrageously, these same members of the “asylum deniers club” remain in their influential appellate positions under Garland! As inexplicable as it is inexcusable!
The HRF report details the wide range of dishonest devices used by EOIR to cut off valid asylum claims: bogus adverse credibility determinations; unreasonable corroboration requirements; claiming “no nexus” when the causal connection is obvious; failing to put the burden on the DHS in countrywide persecution involving the government or past persecution; bogus findings that the presence of relatives in the country negates persecution; ridiculous findings that severe harm doesn’t “rise to the level of persecution,” failure to listen to favorable evidence or rebuttal; ignoring the limitations on representation and inherent coercion involved in intentionally substandard and health threatening ICE detention, to name just some. While these corrupt methods of denying protection might be “business as usual” at EOIR “denial factories,” they have been condemned by human rights experts and many appellate courts. Yet Garland continues to act as if nothing were amiss in his “star chambers.”
This bench needs to be cleared of incompetence and anti-asylum bias and replaced with experts committed to due process and fair, impartial, and ethical applications of asylum principles. There was nothing stopping Sessions and Barr from “packing” the BIA and the trial courts with unqualified selections perceived to be willing and able to carry out their White Nationalist agenda! Likewise, there is nothing stopping Garland from “unpacking:” “cleaning house,” restoring competence, scholarly excellence, and “due process first” judging to his shattered system!
“It’s not rocket science, but ‘unpacking’ the Immigration Courts appears beyond Garland’s skill set!” “Unpacking” Photo by John Keogh Creative Commons License
All that’s missing are the will and the guts to get the job done! Perhaps that’s not unusual for yet another Dem Administration bumbling its way through immigration policy with no guiding principles, failing to connect the dots to racial justice, betraying promises to supporters, and leaving a trail of broken human lives and bodies of the innocent in its wake. But, it’s unacceptable! Totally!
EOIR: EOIR reminds interested stakeholders that hearings on Feb. 8, 2022, and beyond will proceed as scheduled, subject to local operational and case-specific decisions. Please monitor EOIR’s website for information about the agency’s operations nationwide.
EOIR NYC: In an effort to provide more clarity on operations at each of the NYC immigration courts from Feb. 8 onward, [EOIR] is providing additional guidance. See attached.
USCIS: In the interest of reducing the burden on both the agency and the public, USCIS has revised its guidelines to state that initial and renewal EADs generally may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners; or up to the end of the authorized deferred action or parole period to applicants in these filing categories
CBS: After a recent internal review, the Biden administration decided to maintain a pandemic-era order put in place under former President Donald Trump that authorizes the rapid deportation of migrants from the U.S.-Mexico border, the Centers for Disease Control and Prevention (CDC) told CBS News Thursday.
VOA: U.S. House Representative Zoe Lofgren, a Democrat from California who leads the House Subcommittee on Immigration and Citizenship, unveiled the legislation Thursday.
Law360: A group of 148 organizations supporting immigrant and civil rights sent a letter to President Joe Biden and congressional leaders urging them to allocate at least $50 million to provide “immediate and dramatic” expansion of legal representation for people facing immigration proceedings.
CNN: An ongoing feud over President Joe Biden’s immigration policies is escalating in Florida where Gov. Ron DeSantis is threatening to keep long-standing shelters from caring for migrant children, culminating in a heated back and forth unfolding in internal correspondence obtained by CNN.
Law360: Immigrant rights groups urged the Biden administration on Tuesday to release people held in immigration detention in Illinois amid fears that U.S. Immigration and Customs Enforcement will send the detainees out of state as Illinois shuts down its last two detention centers.
WaPo: About a hundred members of the police, National Guard and army on Sunday evicted 381 migrants, mainly Central Americans and Mexicans, from a makeshift camp they had been staying in for almost a year in Tijuana at the U.S. border crossing.
DHS: “The southern border can be an inhospitable place for man and beast, and that is exactly why a machine may excel there,” said S&T program manager, Brenda Long. “This S&T-led initiative focuses on Automated Ground Surveillance Vehicles, or what we call ‘AGSVs.’ Essentially, the AGSV program is all about…robot dogs.”
AILA: BIA found §2C:35-10(a)(1) of New Jersey Statutes Annotated is divisible and the record of conviction can be reviewed under the modified categorical approach to determine whether the specific substance possessed is a controlled substance under federal law. (Matter of Laguerre, 1/20/22)
AILA: BIA found Iowa Code §714.1 is divisible with respect to whether a violation of it involved theft by taking without consent or theft by fraud or deceit, permitting use of modified categorical approach to determine whether violation involved aggravated felony theft. (Matter of Koat, 1/27/22)
AILA: BIA found the amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to victim(s) exceeding $10,000, if the amount ordered is sufficiently traceable to the conduct of conviction. (Matter of F-R-A-, 2/3/22)
LexisNexis: Helen Harnett writes: “I thought you might be interested in this BIA decision. The IJ terminated proceedings because the NTA did not contain a time or date.”
AILA: In light of unexplained irregularities in the record, the court vacated the BIA’s denials of withholding of removal and relief under the Convention Against Torture (CAT) and remanded to the agency for further factfinding. (Bonilla v. Garland, 1/12/22)
AILA: The court held that the petitioner’s conviction for driving a motor vehicle without consent of the owner or lessee under Rhode Island General Laws (RIGL) §31-9-1 did not constitute a categorical aggravated felony theft offense. (Da Graca v. Garland, 1/18/22)
AILA: The court held that the BIA adequately considered the question of extraordinary circumstances called for in Matter of Jean, and found it lacked jurisdiction to consider the relative weight the BIA gave the evidence in denying the inadmissibility waiver. (Peulic v. Garland, 1/11/22)
AILA: The court agreed with the BIA that the Honduran petitioner’s proposed particular social group (PSG) of “prosecution witnesses” lacked particularity, and found no error in the BIA’s decision upholding the IJ’s adverse credibility finding as to petitioner. (Herrera-Martinez v. Garland, 1/5/22)
AILA: Where the petitioner had a pending U visa application, the court held that the BIA abused its discretion in denying his motion for a continuance, finding that the BIA had departed from precedential opinions in holding that he had failed to show good cause. (Garcia Cabrera v. Garland, 1/6/22)
Law360: The Fourth Circuit breathed new life into a Guatemalan migrant’s asylum case, faulting an immigration judge for failing to tie death threats that the man received to his son, who was targeted for gang recruitment.
AILA: The court concluded that the BIA did not abuse its discretion in holding that the petitioner’s proposed particular social group (PSG)— “Honduran women who are unable to leave their domestic relationships”—was not legally cognizable. (Jaco v. Garland, 10/27/21, amended 1/26/22)
AILA: The court concluded that res judicata did not bar the removal proceedings, deadly conduct was categorically a crime involving moral turpitude (CIMT), and petitioner was admitted to the United States when he adjusted to lawful permanent resident (LPR) status. (Diaz Esparza v. Garland, 1/17/22)
AILA: The court held that because petitioner, who was homosexual and identified as transgender, had said that she could probably safely relocate in Guatemala, the BIA did not err in finding that the government had rebutted the presumption of future persecution. (Santos-Zacaria v. Garland, 1/10/22)
AILA: The court affirmed the BIA’s determination that petitioner’s felony assault conviction was a particularly serious crime rendering him ineligible for withholding of removal, because he had failed to show how the alleged errors compelled reversal. (Aviles-Tavera v. Garland, 1/4/22)
AILA: The court denied the petitioner’s petition for panel rehearing, withdrew its prior panel opinion of 8/6/21, and held that the BIA did not abuse its discretion by applying an incorrect legal standard when it denied petitioner’s motion to reopen. (Parada-Orellana v. Garland, 1/3/22)
AILA: The court held that BIA did not abuse its discretion in denying the motion to reopen based on ineffective assistance, finding that Matter of Lozada requires more than a statement that the noncitizen is “not interested” in filing a bar complaint.(Guzman-Torralva v. Garland, 1/13/22)
AILA: The court held that the record supported the IJ’s and BIA’s conclusion that the Chinese Christian petitioner did not meet her burden of establishing her eligibility for asylum given the discrepancies in her testimony and the lack of corroborative evidence. (Dai v. Garland, 1/24/22)
AILA: The court held that the BIA legally erred by considering arguments that the government did not present to the IJ, and that the BIA engaged in impermissible factfinding on the conditions in Kosovo, rendering its decision to deny remand an abuse of discretion. (Osmani v. Garland, 1/24/22)
AILA: The court held that the BIA did not abuse its discretion in denying petitioner’s successive motion to reopen, and that the BIA did not deprive the petitioner of a constitutionally protected liberty interest in declining to reopen proceedings sua sponte. (Urrutia Robles v. Garland, 1/26/22)
AILA: The court rejected the petitioner’s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate. (Jimenez-Sandoval v. Garland, 1/13/22)
Law360:An Indian man can’t be deported for missing an immigration court date after he received a notice to appear that didn’t specify a date and time, even though that information came in a later notice, the Ninth Circuit has ruled.
AILA: The court held that arson in violation of California Penal Code (CPC) §451 was not a categorical match to its federal counterpart, and thus that the petitioner’s conviction under CPC §451(b) was not an aggravated felony that rendered him removable. (Togonon v. Garland, 1/10/22)
AILA: The court issued an order denying the rehearing en banc of Velasquez-Gaspar v. Garland, in which the court upheld the BIA’s conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Garland, 1/25/22)
AILA: The court held that the petitioner, who had been convicted of cocaine possession under Florida law, had failed to show that Florida’s definition of cocaine covers more than its federal counterpart, and thus upheld the BIA’s denial of cancellation of removal. (Chamu v. Att’y Gen., 1/26/22)
Law360: The U.S. Department of Homeland Security urged a D.C. federal court to halt immigration advocates’ efforts to inspect a large detention center accused of denying detainees access to counsel, calling a probe “particularly intrusive” amid debate over the lawsuit’s viability.
AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.
Liz’s “Item 4” under “Litigation,” upholding termination for a statutorily defective NTA, inspired the following additional thoughts.
ETHICS ON VACATION @ DHS & DOJ: Apparently a Frivolous DHS Appeal Asking BIA To Publish Intentional Misconstruction of 7th Circuit Law is SOP For Mayorkas, Garland, & Underlings!
By Paul Wickham Schmidt
Courtside Exclusive
Feb. 9, 2022
So, DHS argues on appeal that the BIA should violate, and intentionally and dishonestly, “misconstrue” 7th Circuit precedent. And, for a good measure, publish the result to insure that no IJ in the 7th Circuit gets it right in the future.
Why aren’t there ethical problems with this outrageous, unprofessional DHS appellate argument? Why isn’t this a precedent, as it provides helpful guidance and can be used to prevent future frivolous litigation by DHS? Why is there no accountability for this frivolous appeal, request to publish, and the blatant effort by DHS counsel to “pull the wool over the eyes” of the IJ and the BIA?
The pattern of taking a frivolous appeal, making unethical arguments, and asking the BIA to publish as a precedent shows the arrogant view of ICE that they “have EOIR in their pocket” (certainly consistent with the Sessions/Barr rhetoric) and that there will be neither accountability nor consequences for frivolous and unethical conduct by DHS attorneys! By not publishing the result as a precedent, the BIA leaves it open for other IJs and single Appellate Judge BIA “panels” to get it wrong in the future. It also sends a signal that taking a whack at making misleading arguments for illegal and unethical results has no downside at Mayorkas’s DHS or Garland’s BIA.
Wonder why there are gross inconsistencies and endless backlogs at EOIR?A totally undisciplined, unprofessional system where “anything goes” and “almost anything” will be defended in pursuit of removal orders certainly has something to do with it! It’s simply been building, under Administrations of both parties, since 2001!
The one-sided BIA precedent process — publishing mainly cases favorable to DHS — is no accident either. Pro-DHS rulings can be used by OIL (correctly or incorrectly) to argue for so-called “Chevron deference” or its evil cousin “Brand X” disenfranchisement of Article III Judges.
By contrast, precedents favorable to individuals merely promote due process, fundamental fairness, best practices, consistency, and efficiency. They might also be used to curb misbehavior by IJs and DHS counsel. Nothing very important in the eyes of EOIR’s DOJ political overlords.
GOP AGs, from Ashcroft through Sessions and Barr, have made it clear that precedents favorable to DHS Enforcement are far less likely to be “career threatening” or “career limiting” for their “captive judges.” On the other hand, precedentsstanding for due process, vindicating migrants’ rights, or curbing “outlier” behavior by IJs and DHS attorneys can be risky. And, perhaps surprisingly, Dem AGs in the 21st Century also have been “A-OK” with that, as Garland demonstrates on a daily basis.
Where are Ur Mendoza Jaddou (yes, she’s at USCIS, not ICE, but she’s “upper management,” knows the issues, and has access to Mayorkas) and Kerry Doyle at DHS? Whatever happened to Lisa Monaco, Vanita Gupta, and Lucas Guttentag at DOJ?
These are the types of “real time” problems that leadership can and should be solving by setting a “no nonsense due process first” tone and bringing in and empowering expert Appellate Judges (“real judges”) and DHS Chief Counsel who will put dueprocess, fundamental fairness, and ethics foremost! But, apparently it’s “below the radar screen” of Biden Administration leadership at DHS and DOJ.
The case for an independent Article I Court has never been stronger! Garland’s lack of leadership and furthering of injustice adds to Chairperson Lofgren’s case for fundamental change and removal of EOIR from DOJ, every day!
“Statutes are so totally annoying! Enforcing them is above our pay grade, if it burdens our ‘partners’ at DHS Enforcement! But, we’ll ‘throw the book’ at individuals for anything! Seems fair to us!” https://www.flickr.com/photos/rasputin243/ Creative Commons
The Supreme Court’s decisions in Pereira and Niz-Chavez, along with the text and structure of the statutory provisions governing in absentia removal orders and Notices to Appear, unambiguously required the government to provide Singh with a Notice to Appear as a single document that included all the information set forth in 8 U.S.C. § 1229(a)(1), including the time and date of the removal proceedings. Because the government did not provide Singh with statutorily compliant notice before his removal hearing, Singh’s in absentia removal order is subject to recission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). We grant Singh’s petition on that ground, do not reach his exceptional circumstances argument, and remand to the BIA for further proceedings consistent with this opinion.
PETITION GRANTED and REMANDED.
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No surprise to “Sir Jeffrey” Chase, me, or experts. What is “below the radar screen” here is how the BIA’s “pattern or practice” of intentional misinterpretation of this very clear statutory provision over three Administrations and in a number of situations has fed the backlog.
One of the “gimmicks” used by DOJ and EOIR to short-circuit due process has been to use bogus “in absentia” orders to complete cases without real hearings and without doing much work while creating a “myth of non-appearance” by asylum seekers. Indeed, under Garland whole dockets were set up with the expectation that individuals would not appear. Agency officials then “cheered” having produced these bogus “final orders.”
It would be unusual if ANY of those subjected to this process under a Garland received “compliant NTAs” sufficient to support in absentia orders! Even with these “gimmicks,” and many more judges, haphazardly selected and often lacking expertise, the backlog has mushroomed.
In truth, asylum seekers appear for their hearings at a rate approaching 100% provided that they get proper notice, understand the process, and are represented. A competent Attorney General would take this empirical data, work with legal services groups, and develop a process to comply with the statute, improve the notice system, promote universal representation, and reduce in absentia hearings.
The obvious first step would be to absolutely require DHS to comply with statutory requirements in issuing Notices to Appear and to impose meaningful sanctions and consequences for the failure to do this. To the extent that the failure to comply is a function of the EOIR/DOJ bureaucracy, those bureaucrats and politicos responsible should also be held accountable by the Immigration Courts.
That’s what fair, impartial, independent judging is supposed to be about! But, Garland, like his predecessors, has tried to “gimmick” his way out of providing fair hearings as required by the statute and our Constitution while ignoring “best practices.”
Does anyone seriously think that a group of “real appellate judges” — experts committed to fair and impartial interpretations that advance due process while promoting best practices — would have come up with the Laparra nonsense? No way!
Yet given a chance to materially improve EOIR’s performance, Garland has chosen the “quality, excellence, and due process for all is optional, at best” approach of his predecessors, even if shying away from their overt weaponization of EOIR against migrants.
Remember, when Garland and company inevitably attempt to deflect or shift blame for their backlogs and “Aimless Docket Reshuffling” to the victims, those stuck in his dysfunctional system and their lawyers, this backlog is largely self-created by folks who have consistently ignored expert advice and input while failing to install competence, expertise, and demonstrated commitment to guaranteeing fairness and due process for all into a broken, biased, and intentionally unfair system!
