"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”
Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:
Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.
H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.
Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.
The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.
Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” Failure doesn’t seem to bother Garland. Maybe it should! PHOTO: Wikipedia Commons
Dan Kowalski reports from LexisNexis Immigration community on the latest screwups from the Article IIIs:
“Mario Fonseca-Fonseca, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Fonseca-Fonseca sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof. … Today, we clarify that prima facie eligibility for relief requires only a threshold showing of eligibility—a reasonable likelihood that the petitioner would prevail on the merits if the motion to reopen were granted. As the BIA previously explained, a noncitizen “demonstrates prima facie eligibility for relief where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied.” In re S-V-, 22 I. & N. Dec. 1306, 1308 (B.I.A. 2000) (en banc). Because the BIA applied the wrong standard in denying Fonseca-Fonseca’s motion to reopen, we remand to the agency to adjudicate his motions under the proper standard.”
[Hats off to Andrew J. S. Newcomb and Elias Mendoza!]
“This appeal requires us to decide how to apply the categorical approach to a conspiracy crime—a question of first impression in our Circuit. The United States seeks to revoke Lisette Lopez’s naturalization on the ground that she committed a crime of moral turpitude within five years of applying for citizenship and willfully concealed or misrepresented during the application process the fact that she had committed a crime. The district court granted judgment on the pleadings in favor of the government on the ground that Lopez had committed a crime of moral turpitude during the statutory period. Because the crime to which Lopez pleaded guilty—conspiring to launder money—did not categorically involve moral turpitude, we reverse and remand for further proceedings consistent with this decision.”
[Hats way off to the indefatigable Matthew Hoppock! An audio recording of the oral argument is here.]
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3) Sue sponte reopening (5th Cir)
“Mancia would like to have her removal proceedings reopened so that her request for suspension of deportation can be adjudicated according to the still-extant substantive NACARA standards. … She contends that nothing in NACARA limits the Board’s general discretionary power to reopen sua sponte a case in which it has rendered a decision. Indeed, that inherent discretion is codified. See 8 C.F.R. § 1003.2(a). So, she reasons, even though the special and more petitioner-friendly reopening avenue of section 203(c) closed to her in 1998, there is no reason why she cannot ask the Board to grant reopening under its discretionary authority, subject to all the limits that otherwise apply to that authority. … We agree with Mancia. The Board’s reliance on 8 C.F.R. § 1003.43(h) — requiring filing of section 203(c) reopening requests with the Immigration Court — is misplaced because that requirement only applies to “any motion to reopen filed pursuant to the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA.” See 8 C.F.R. § 1003.43(h)(1). Mancia’s motion to reopen is no such motion. And nothing in NACARA requires those seeking relief under its provisions to do so by filing a section 203(c) motion. The government points to no statute, rule, or precedent to the contrary. And we see no reason why NACARA should be read as implicitly divesting the Board of its discretion to sua sponte reopen a proceeding. … For the foregoing reasons, we grant Mancia’s petition by vacating the Board’s rejection of her motion to reopen her removal proceedings pursuant to the Board’s sua sponte authority and remanding for further consideration of that motion consistent with this opinion.”
Unnecessary mistakes such as this, including ones like USA v. Lopez, above, which carry over into naturalization and other areas, could largely be avoided if Garland heeded expert advice and appointed a BIA of all expert judges. That would be those with universally respected comprehensive knowledge of immigration and human rights, an unswerving commitment to due process, and a demonstrated focus on fair results — NOT the current “any reason to deny, let’s just go with the DHS flow” attitude that infects all too much of the BIA’s decision-making these days.
There is also some irresponsible performance going on at OIL where they are defending flawed results that expert advocates would or should know are unjust and in many cases just flat out wrong or misguided!
The above things are supposed to be “easy fixes” for Dem Administrations. Instead, the EOIR/DOJ continues to a large extent as it did under Trump — with serious adverse human, legal, and future consequences for American democracy.
If you can’t or won’t fix that which you control, what good are you? That’s the question that Dems should be asking about Garland’s indifferent performance on human rights, racial justice, and immigration — all inextricably related whether he and his lieutenants want to admit it or not!
“A federal judge has determined the government was unjustified in its fight to keep a woman locked up in an Aurora immigrant detention center while her deportation case proceeded. U.S. District Court Judge Charlotte N. Sweeney ordered the federal government last September to hold a hearing to determine whether Brenda Viruel Arias should be released from custody. Sweeney found the circumstances of Viruel Arias’ 14-month confinement required a bond hearing to avoid infringing on her constitutional right to due process. Shortly afterward, an immigration judge permitted Viruel Arias’ release after the government failed to prove she should remain behind bars. Viruel Arias’ lawyers then requested $22,601 in attorney fees from the government. Under federal law, victorious parties in civil cases against the government may receive attorney fees if, among other things, the government’s position was not “substantially justified.” On July 12, Sweeny agreed the government was not substantially justified in resisting a release hearing for Viruel Arias. In recent years, she observed, federal judges in Colorado have been sympathetic to non-citizens’ claims of unconstitutional confinement where the detention has exceeded one year. The government, as a party those cases, was aware of the judiciary’s attitude toward prolonged detention. “(T)hey do not justify why they did not follow a clear legal trend,” Sweeney wrote.”
Here’s my favorite quote from Judge Sweeney’s decision: “At bottom, Respondents were not substantially justified in their pre-litigation and litigation practices because they disregarded a clear legal trend in the District and their own agency policies in the underlying action.”
Similar to the Trump Administration, the Biden Administration is wasting taxpayer money on cruel, unnecessary, expensive, illegal detention, and then squandering even more money on the arguably frivolous, and clearly mindless, defense thereof! Somebody should be asking Garland why?
“Zhi Bo Chen petitions for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Chen was not credible. Because certain reasons for that credibility finding were erroneous, and because we cannot be confident that the IJ would have made the same determination absent those errors, Chen’s petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.”
Gary Yerman, Esquire Managing Partner The Yerman Group NY, NY
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My favorite quote from the Circuit’s decision by Judge Raymond J. Lohier (Obama appointee): “We conclude that the IJ misidentified part of Chen’s testimony as inconsistent, improperly relied on trivial inconsistencies, and misconstrued as an omission a part of Chen’s testimony that comported with his Form I-589 asylum statement.”
But, even with all these glaring defects, the IJ’s findings were affirmed by the BIA without much, if any, critical analysis. What does this say about EOIR under AG Garland?
Credibility should be “bread and butter” for EOIR Judges and particularly the BIA. But, when the “culture” is “any reason to deny,” bad things happen!
As my Round Table colleague Hon. “Sir Jeffery” Chase commented: “You have to wonder what percentage of all BIA decisions contain significant errors.”
I think that’s a particular concern in unrepresented cases, which are much less likely to reach the Circuits. Additionally, the unduly restrictive legal standard for judicial review means that marginal BIA adverse credibility findings will often get “rubber stamp” affirmances from the Circuits.
Essentially, EOIR often denies the respondent “the benefit of the doubt” in close credibility cases and then the Courts of Appeals give the BIA “the benefit of the doubt.” So, it ends up being a “double whammy” for the respondent!
That’s why it is critical to have individuals effectively represented at the trial level!At each level thereafter, the law skews heavily in favor of the Government!
That also supports the position that “dedicated dockets” and “expedited dockets” that discourage and impede (one could argue intentionally) effective representation and full presentation of all the evidence should be held to be prima facie denials of due process!
It’s also why I argue that it’s so important that exceptionally well qualified experts with experience representing asylum seekers be appointed to these hugely important (yet widely ignored and under-appreciated) EOIR judgeships! Better judges would make the entire EOIR system fairer and more efficient, without sacrificing due process!
That’s also why appellate victories like this by Attorney Gary Yerman are so impressive and telling about the continuing dysfunction at EOIR!
Additionally, given the “loading of the system” against the respondent on credibility, the BIA has to REALLY screw up to get reversed, as they did in this case! That, in turn, raises a fundamental unresolved issue: Why is a Dem Administration running a specialized court system that all too often lacks the expertise and judgement to get “bread and butter” issues like this correct in the first instance?
It’s obvious that a BIA that goofs up cases like this is NOT providing the type of clear, expert guidance to IJs necessary to achieve due process and fundamental fairness on a continuing systemic basis! That should be of huge concern to everyone who values justice in America!
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”
“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”
In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!
Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.
Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!
Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.
Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.
Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases?Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”
In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.
So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.
What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!
Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7
Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.
Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.
Here are a couple of excerpts from the decision that stood out to me:
“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”
There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.
Again, really great work and outcome! Thanks for sharing with all of us, Dan!
For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!
In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.
Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.
Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!
Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?
This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!
Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!
Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!
“The United States’ war in Afghanistan required regional allies willing to aid the effort. One such ally was Shaker Ullah, a Pakistani businessman who sold supplies to coalition forces. This invoked the wrath of the Pakistani Taliban, which demanded exorbitant payments from Ullah under threat of death. Ullah repeatedly refused, and the Taliban attempted to carry out its threat, promising to hunt him until it succeeded. After losing his business, home, and nearly his life, Ullah fled to the United States seeking asylum. The Immigration Judge and Board of Immigration Appeals both recognized that Ullah suffered past persecution entitling him to a presumption that the Taliban would continue to target him if he returned to Pakistan. But they agreed with the government that because Ullah lived in Islamabad (the capital of Pakistan) for a few weeks without the Taliban finding him, he could live in a new area of the country without fear of reprisal. We disagree. Ullah’s brief sojourn to Islamabad—where he never left the house— doesn’t rebut the presumption that a notorious terrorist organization continues to imperil his life. Since the record would compel any reasonable adjudicator to conclude Ullah faces a well-founded threat of future persecution, we grant Ullah’s petition for review, reverse the Board’s denial of Ullah’s preserved claims, and remand with instructions that the agency grant relief.”
[Hats way off to superlitigator Ben Winograd! Listen to the oral argument here.]
“Petitioner Zuowei Chen is a native of China admitted to the United States on a student visa in 2009. Chen now seeks review of a Board of Immigration Appeals order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. If removed to China, Chen fears, he will be persecuted and tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him because of his Christian beliefs and practices. We find there are aspects of the agency’s decision that require clarification before we can meaningfully review Chen’s claims. Accordingly, we vacate the decision of the Board of Immigration Appeals and remand for further explanation, consistent with this opinion.”
Notably, and refreshingly, in Ullah, the 4th Circuit took the unusual step of directing the BIA to grant asylum, rather than just remanding for the BIA to screw it up again! In Chen, Trump appointee Circuit Judge Marvin Quattlebaum was part of the unanimous panel! Condemnation of EOIR’s deficient performance is uniting Article III jurists across ideological lines!
The GOP is “out for Garland’s scalp” for all the WRONG reasons! It’s actually Dems who should be demanding an accounting for his inexcusable, miserable, democracy-eroding (non)performance at EOIR!
Garland’s mess at EOIR isn’t “theoretical,” “academic,” or “speculative!” It’s ACTUALLY endangering lives, eroding democracy, and creating unnecessary chaos on a daily basis! His intransigence is also diverting HUGE amounts of resources that could be used to DEFEND American democracy, rather than seeking to hold a tone-deaf Dem Administration accountable!
In the meantime, Dems are fecklessly moaning and groaning about a lawless and ethics-free Supremes. Yet, a Dem Administration is operating a huge, nationwide “court” system presenting these same problems, in spades!♠️
And, the victims of EOIR’s substandard judging are overwhelmingly people of color, literally fighting for their lives in a dysfunctional system that the Biden Administration is unwilling and/or unable to fix. In these cases, the victims were fortunate enough to be represented by two of the “best in the business,” Ben Winograd and Tamara Jezic. But, too many others face this biased and unfair system unrepresented, a situation that Garland not only has failed to remedy, but has made worse in some ways.What “message, does this send, particularly to the younger cohort of “social justice” voters whom the Dems are counting on for the future?
Following the 2020 election, human rights advocates and experts expected and deserved dramatic, long overdue progressive improvements in justice at EOIR. Instead, Garland inexplicably has retained many of the most regressive features of injustice at EOIR, developed and reinforced during the Trump years. Frustration abounds, while justice for the most vulnerable among us suffers under a Dem Administration! Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
How bad is EOIR under Garland? One informed observer put it this way:
BIA staff attorneys are rewarded for the number of signed decisions per month. With the present make-up of the Board, their only incentive is to crank out denials.
Dems love to talk about “change!” The GOP actually achieves it, even though the results are overwhelmingly negative, regressive, and existentially damaging to democracy! Something’s got to give here!
“We must decide whether Ramírez’s conduct—lying to local authorities about U.S. citizenship—was for a “purpose or benefit under” a particular law. The BIA, relying on its Richmond decision, concluded that Ramírez lied about his citizenship “for the purpose of avoiding removal proceedings.” See In re Richmond, 26 I. & N. Dec. 779, 788 (B.I.A. 2016) (holding that a “purpose” under a law “includes the avoidance of negative legal consequences— including removal proceedings”). The BIA’s interpretation of § 1182(a)(6)(C)(ii)(I) is untenable. We agree with our sister circuit that “the BIA’s construction of the ‘purpose or benefit’ language [is] . . . ‘unmoored from the purposes and concerns’ of the statute.” Castro v. Att’y Gen., 671 F.3d 356, 370 (3d Cir. 2012) (quoting Judulang v. Holder, 565 U.S. 42, 64 (2011)). … We conclude that Richmond’s construction of “under” is unreasonable and do not afford it any deference. Consequently, we reject Richmond’s derivative holding that “[t]he term ‘purpose’ . . . includes the avoidance of negative legal consequences—including removal proceedings.” … We therefore grant the petition for review and remand to the agency to either grant Ramírez’s application for adjustment of status or explain, consistent with this opinion, why not.”
Trust the BIA under Garland to come up with “teaching examples” of what’s wrong with EOIR!
Just last week we were discussing “Chevron deference” (a/k/a “Article III judicial task avoidance”) in my Immigration Law & Policy class at Georgetown Law. “Unreasonable interpretation” was one of the three ways we discussed for the Article IIIs to avoid giving Chevron deference to the BIA (the other two being “plain meaning” and “not your field of expertise”).
This is a classic (if rather brutal) example of the “unreasonable” exception to Chevron.
One reason why the “21st Century BIA” has become “unmoored” is that it is basically “tethered” to whatever DHS Enforcement wants and what appears to line up with an Administration’s “immigration enforcement agenda.” In other words, the BIA tends to interpret ambiguous statutes with “career preservation” rather than “best interpretations” in mind. That’s generally bad news for individuals seeking due process and fundamental fairness in life or death matters before EOIR!
That’s a chance for NDPA “practical scholar/experts” to start counteracting what has been a two-decade downward spiral of due process, fundamental fairness, and best practices at this oft-ignored “life or death tribunal” with nationwide jurisdiction.
Inside Immigration Court: The Pros, Cons Of Remote Hearings
By Mimi Tsankov | June 2, 2023, 6:05 PM EDT ·
Listen to article
In this Expert Analysis series, immigration judges discuss best practices for attorneys who appear before them and important developments in immigration court practice for cases involving asylum, detention, deportation and adjustment to lawful permanent resident status.
Hon. Mimi Tsankov President,NAIJ
Mimi Tsankov
The pandemic has reset settled expectations about how we interact in the workplace, and that transformation has hurled the nation’s immigration courts on a technological voyage into the 21st century.
Despite record congressional appropriations over the past few cycles targeted, in part, on technological advances, the court has relied historically on physical files, paper communications and traditional, in-person exchanges.[1]
Although video teleconferencing has been in limited use at the immigration court since the mid-1990s, those hearings were most often in detained settings, relying typically on judges, attorneys, interpreters and legal staff who were physically present in the courthouse.[2]
During the pandemic, with court staff hamstrung for months, struggling to process mountains of court-paper filings, and judges in some jurisdictions unable to hold hearings, EOIR rolled out about 100 specially equipped laptops with digital audio recording applications installed and connected to a commercially available video conferencing application called Cisco Webex.
These so-called DAR laptops enable the parties, the witnesses, the public and even the judge to appear at hearings virtually because the laptops can digitally record the video hearings in the same way as a judge in a courtroom.[3]
This powerful advance was made all the more effective with the introduction of the EOIR Courts and Appeals System, or ECAS, an online tool for filing and maintaining records of proceeding that is now operational throughout the entire immigration court system.[4]
. . . .
With improvements sure to be made as technological capabilities advance in the years ahead, the OIG has recommended that immigration courts “[c]ontinue the deployment of remote kits to immigration judges to ensure that immigration judges have the equipment necessary to adjudicate hearings efficiently from non-court settings.” This way, judges can more easily assist courts in areas overwhelmed by new cases, and mitigate health- and safety-related court cancelations.
Expansion of the remote judge corps program offers obvious efficiencies, especially if the court is able to speed up and optimize digitization of our backlogged files. Although there are some courts that are reducing reliance on the remote hearing program, as of February that appears to be an anomaly given the overwhelming support nationwide for the program.[14]
With the trial immigration judges poised to adapt and adopt these advances, it will be up to EOIR management to lead the way in determining how quickly and effectively these and other stakeholder-identified challenges can be addressed.
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Thanks, Mimi, for all you do for due process and American justice! The above link will take you to the full article, complete with citations and disclaimer.
Sadly, my friend, waiting for “EOIR management to lead the way,” is likely to be “Waiting for Godot.”
Immigration practitioners waiting for EOIR “Management” to show. It could be a long wait. Very long! Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011
“Gerardo A. Portillo petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming his order of removal and denying his application for adjustment of status. Because we find that a conviction under Massachusetts General Laws (“MGL”) ch. 269, § 11C is not categorically a firearm offense as defined by 8 U.S.C. § 1227(a)(2)(C), we grant the petition for review, vacate the decision below, and remand for further proceedings. … Accordingly, without resorting to “legal imagination,” we conclude that MGL ch. 269, § 11C sweeps more broadly than the federal offense, and Portillo need not produce an actual case to demonstrate that overbreadth. … For the reasons stated above, we grant the petition for review, vacate the BIA’s opinion, and remand for further proceedings consistent with this decision.”
Congrats to the NDPA “litigation team” of Klein, Church, & Gillespie!
Notably, the unanimous 1st Circuit did a detailed 24-page analysis to get this one right. This is the type of scholarship and effort one might expect, but doesn’t consistently get, from the BIA.
Remarkably, this case has now been pending for more than six years at EOIR.Now, largely as a consequence of EOIR’s, toxic “how can we get to no” bias, present over the past several Administrations, it’s back to “square one” with no end in sight.
THAT’S how a system builds uncontrollable backlog! Maybe pruning out the “deadwood” and bringing in “practical scholar-experts” as judges at the appellate and trial levels wouldn’t solve all the problems that have been building up for decades at EOIR. But, it sure would be a great start on a better future!
“Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings.”
[Hats off yet again to superlitigator Raed Gonzalez!]
When will they learn, when will they ever learn? The ultra-conservative 5th Circuit pays attention when Raed litigates in behalf of individuals seeking due process and fundamental fairness at EOIR. Why doesn’t Garland?
BIA Asylum Panel In Action. Garland’s largely “holdover” BIA continues to align itself with Trump’s extreme right, nativist judges, as the progressives and advocates who actually supported Dems in the last two elections are left to stew, along with their dehumanized asylum seeking clients. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
“Under the correct analysis, the record here compels a conclusion that Honduran rural landownership in this case is a common fundamental characteristic because Turcios-Flores should not be required to change this aspect of her identity to avoid persecution given the demonstrated importance of landownership to her. Therefore, we remand to the Board for further explanation of whether this group meets the social distinction and particularity requirements as well as the remaining asylum considerations.”
To reach their wrongconclusion that “rural landowners” are not a “particular social group,” the BIA ignored its own precedent. See, e.g., Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), modified on other grounds.
Class warfare and persecution of property owners was at the heart of most Marxist-Leninist Communist dictatorships.
Remarkably, under Garland, the BIA continues to parrot the same biased, restrictionist nonsense spouted by the Trumpist dissenter in this case, Judge Chad A. Readler. He was roundly criticized as unqualified by Democrats and advocates at the time of his nomination. This opposition had lots to do with his biased, anti-immigrant views flowing from his then “boss,” nativist/racist former AG Jeff “Gonzo Apocalypto” Sessions!
For example, it’s worth reviewing the comments of the Alliance for Justice on Reacher’s nomination:
On June 7, 2018, President Trump announced his intention to nominate a Justice Department official, Chad Readler, to the Sixth Circuit Court of Appeals. This announcement was particularly striking for one notable reason: on that very day, Readler had become a leader in the Trump Administration’s fight to destroy the Affordable Care Act and the protections it offers to millions of Americans. Readler, as acting head of the Civil Division, filed a brief to strike down the ACA, including its protections for people with preexisting conditions. If Readler and the Trump Justice Department are successful, the ACA’s protections for tens of millions of people, including cancer patients, people with diabetes, pregnant women, and many other Americans, would be removed.
As the acting head of the Department of Justice Civil Division under Attorney General Jeff Sessions, Readler defended the Trump Administration’s most odious policies, including separating immigrant children from their parents at the border, while claiming that “[e]verything that the Attorney General does that I’ve been involved with he’s . . . being very respectful of precedent and the text of the statute and proper role of agencies.”
His track record is equally atrocious in other respects. He has tried to undermine public education in Ohio; supported the efforts of Betsy DeVos to protect fraudulent for-profit schools; fought to make it harder for persons of color to vote; advanced the Trump Administration’s anti-LGBTQ and anti-reproductive rights agenda; fought to allow tobacco companies to advertise to children, including outside day care centers; sought to undermine the independence of the Consumer Financial Protection Bureau; and advocated for executing minors.
Chad Readler’s record of diehard advocacy for right-wing causes suggests he will be anything but an independent, fair-minded jurist. Alliance for Justice strongly opposes Readler’s confirmation.
It’s remarkable and infuriating that once in office, Democrats in the Biden Administration have aligned themselves with the toxic views of extreme, nativist right wing judges whose xenophobic, atrocious views they campaigned against! They have done this in a huge “life or death” Federal Court system that they completely control and have authority to reform without legislation!
Pooja Asnani reports from Sanctuary For Families NY:
Hi all,
I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.
Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.
Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.
Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”
I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.
While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.
Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.
CC’ing the team who worked on this case, including Deirdre, if folks have questions.
Thanks,
Pooja
Deirdre Stradone Attorney Sanctuary for Families NYKelly Becker-Smith Attorney Sanctuary for Families NYAmalia Chiapperino Sanctuary for Families NY
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Dan Kowalski reports from LexisNexis Immigration Community:
Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”
Many congrats and much appreciation to all involved!
Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.
These are NOT “one offs!”No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”
That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.
The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.
It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.
That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!
Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!
Injustice Public Realm Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!
The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!
Based on all of the evidence as a whole, and in light of the applicable caselaw, Reyes-Hoyes has made a compelling case of persecution. Nevertheless, we find a remand is necessary because the BIA did not make a determination as to Reyes-Hoyes’s credibility. The BIA did not mention credibility in its decision or express any doubts about the truth of Reyes- Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s credibility, although he did not explicitly find her uncredible and ultimately stated he was not denying relief “based on a lack of sufficiency of proof.” However, the BIA did not adopt the IJ’s decision and thus did not incorporate any of the doubts the IJ had. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). If Reyes-Hoyes is credible, she has shown persecution, but the credibility determination must be made by the factfinder, not by this court on appeal. See 8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Olivia v. Barr, 954 F.3d 757, 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated in part, and we remand to the BIA for a determination on credibility.
. . . .
In sum, we conclude that, if Reyes-Hoyes is credible, the record compels the conclusion that Reyes-Hoyes suffered harm rising to the level of past persecution, but we remand for the BIA to consider her credibility in the first instance. We also conclude that the record compels the conclusion that safe internal relocation to parts of Guatemala—Mesata and Raul—was not possible. Additionally, we hold that the BIA procedurally erred in the remainder of its analysis concerning whether internal location was reasonable and whether Reyes-Hoyes had shown state action by not meaningfully considering the relevant substantial evidence.
. . . .
**************************
Here is my immediate reaction when Dan Kowalski at LexisNexis sent me the decison:
Wow! This is an EOIR/OIL error fest — replete with misrepresentations and mischaracterizations! Totally sloppy work! Why won’t they publish this? It’s a perfect example of how Garland has failed to get the job done!
And, here’s the reaction from my friend and Round Table Colleague “Sir Jeffrey Eagle Eyes” Chase:
24 pages; very detailed analysis of recurring asylum issues. Should certainly have been published.
BTW, please note footnote 9, an example of the ongoing problem with the government’s online regs continuing to list the enjoined “death to asylum” regs that the previous administration tried to push through. The Fifth Circuit continues to believe that the internal relocation reg was amended effective January 19, 2021. Have cases been decided based on this erroneous belief?
Lest you doubt the “complete FUBARness” of EOIR, check these out:
Worst of all the small and mid-sized agencies ranked;
While the “curve” for “subagencies” has gone up since 2007, EOIR’s score has cratered, plunging dramatically during the Trump years;
EOIR ranked at or near the bottom on key metrics, including, significantly, “leadership style” (some of the “credit” for this abysmal score should go to DOJ, which has failed to provide dynamic, due-process-oriented leadership over the last six years);
GAO study just cited EOIR for a number of management deficiencies including “blowing off” “our [GAO’s] 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so—even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”
The NAIJ continues to raise technology and health and safety defects with EOIR “management;”
Notably, during this period of abject failure, EOIR has found time and resources to waste (and potential “goodwill” to squander) on unneeded nonsense like “IJ Dashboards,” “production quotas,” “expedited dockets,” more layers of bloated headquarters bureaucracy, and, perhaps the biggest boondoggle of all, a totally absurd and duplicative “Office of Policy” for an agency that has demonstrated a disturbing inability to carry out its “core function:” Providing Due Process for all through fair, timely, expert, correct adjudications!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — As Dems founder in their commitment to restore justice, could new Immigration Judges from the NDPA — unswervingly committed to due process, fundamental fairness, and best practices — get this poor little fella back on his feet and improve the culture and atmosphere at the “retail level” of EOIR, even in the face of indifference and incompetence from those in charge? Lives and futures — perhaps the future of our democracy — are at stake!
What we really need is a “lean, not mean, due process machine” @ EOIR. Why can’t the Dems deliver? That’s the age-old question among human rights experts!
Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges
POOLER, Circuit Judge, dissenting:
2 Standards matter. A standard of review is the essential mechanism that
3 defines an appellate court’s proper role in reviewing the record presented. All
4 appellate courts must adhere to the proper standard of review. The Board of
5 Immigration Appeals (“BIA” or “the Board”) is no exception. Here, the BIA
6 applied a standard that substantially deviated from the clear error standard and
7 improperly made factual findings that contradicted those made by the
8 Immigration Judge (“IJ”). The BIA’s failure to adhere to the proper standard is
9 “the type of error that requires remand.” De La Rosa v. Holder, 598 F.3d 103, 108
10 (2d Cir. 2010). Accordingly, I respectfully dissent.
11 This Court lacks jurisdiction to review purely discretionary decisions by
12 the BIA, see 8 U.S.C. § 1252(a)(2)(B)(ii), but we retain jurisdiction over
13 “constitutional claims or questions of law,” Noble v. Keisler, 505 F.3d 73, 77 (2d
14 Cir. 2007) (quoting § 1252(a)(2)(D)). When reviewing decisions, “[t]he Board will
15 not engage in de novo review of findings of fact determined by an immigration
16 judge. Facts determined by the immigration judge, including findings as to the
17 credibility of testimony, shall be reviewed only to determine whether the
18 findings of the immigration judge are clearly erroneous.” 8 C.F.R. §
1
1 1003.1(d)(3)(i). “[W]hen the BIA engages in factfinding in contravention of 8
2 C.F.R. § 1003.1(d)(3)(iv), it commits an error of law, which [the Court has]
3 jurisdiction to correct.” Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010); see also
4 Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir. 2006) (explaining that the Court will
5 vacate BIA decisions “that result from flawed reasoning or the application of
6 improper legal standards”). Though the BIA “may review questions of law” and
7 “all other issues” on appeal de novo, see § 1003.1(d)(3)(ii), it is explicitly barred
8 from “engag[ing] in factfinding in the course of deciding cases” aside from
9 taking “administrative notice of facts that are not reasonably subject to dispute,”
10 § 1003.1(d)(3)(iv)(A).
11 Here, the BIA recited the precise legal standard at the beginning of its May
12 2019 decision. Special App’x at 7 (citing § 1003.1(d)(3)). But we do not simply
13 “rely on the Board’s invocation of the clear error standard; rather, when the issue
14 is raised, [the Court’s] task is to determine whether the BIA faithfully employed
15 the clear error standard or engaged in improper de novo review of the IJ’s factual
16 findings.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see also Chen v.
17 Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 514 (2d Cir. 2006) (noting that
18 despite “cit[ing] the proper legal standard at the outset of its decision, [the BIA]
2
1 failed to apply this deferential standard of review”). Despite its invocation of the
2 clear error standard, the BIA did not ultimately apply this standard of review to
3 Oscar Hernandez’s case. Merely reciting the standard does not transform the
4 BIA’s impermissible factfinding into a permissible exercise of discretion. Such lip
5 service should not suffice.
6 The majority opinion characterizes the BIA’s impermissible factfinding as a
7 simple “de novo reweighing of the equities based on the facts found by the IJ.”
8 Maj. Op. at 3. That is not the case. Without identifying any of the IJ’s findings as
9 clearly erroneous, the BIA implicitly rejected the IJ’s factual findings and
10 substituted the facts found by the IJ with its own factual findings. If the BIA
11 rejects the IJ’s findings, we expect it to “supply cogent reasons for its rulings,”
12 which the BIA failed to provide. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016).
13 The BIA completely disregarded the IJ’s credibility determination when it
14 concluded, contrary to the IJ’s findings, that it “d[id] not find [Hernandez’s]
15 explanation convincing” regarding the circumstances of his 2016 arrest. Special
16 App’x at 10. This divergence in characterization of the 2016 incident was central
17 to the BIA’s decision. In its attempt to parse out the definition of “convincing,”
18 the majority claims the BIA did not overturn the IJ’s factual findings, arguing the
3
1 BIA’s intended use of the word meant it was not “persuaded” by Hernandez’s
2 explanation, not that his testimony was not “truthful.” Maj. Op. at 11. This is an
3 unconvincing distinction. Next, the majority suggests the BIA doubted that
4 Hernandez warranted discretionary relief, not the truthfulness of his testimony.
5 Id. at 12. That clarification, however, does not do much to support the majority’s
6 argument. The BIA’s “de novo” reconsideration of whether Hernandez merited a
7 favorable exercise of discretion was premised on its factual determination that he
8 had “continued to engage in violent behavior” following his first arrest and
9 conviction in 2009. Special App’x at 10. The only evidence cited for this
10 determination was that Hernandez’s “most recent arrest in 2016 . . . included
11 abusive behavior toward his spouse”—a characterization directly at odds with
12 the IJ’s findings. Special App’x at 10.
. . . .
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You can read the full decision, including Judge Poolers’ full dissent, at the link.
As Judge Pooler points out, manipulation of the standards of review can be used either to improperly substitute judgement on fact-findings (BIA) or too avoid critical review of BIA’s actions (Circuit majority).
Thanks to Dan Kowalski over at LexisNexis for passing this along.
