“APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’” – Page 31

READ ERIC POSNER: The Right’s “New Human Rights” Incorporates Hate, Intolerance, Fear Of Others!

https://www.washingtonpost.com/outlook/the-administrations-plan-to-redefine-human-rights-along-conservative-lines/2019/06/14/5e456caa-8def-11e9-b162-8f6f41ec3c04_story.html

Posner writes in the WashPost:

The State Department recently published a brief, enigmatic notice announcing the formation of a new Commission on Unalienable Rights. With a modest budget of $385,074 and merely advisory powers, the commission received little attention beyond head-scratching over its strange name. Yet the significance of the endeavor should not be overlooked. It puts the government’s imprimatur on an assault upon one of the cornerstones of modern liberalism: international human rights.

According to the commission’s draft charter, its job will be to explore “reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights” — rights of the sort that Abraham Lincoln and Martin Luther King Jr. upheld as ideals, the charter says.

This language may sound unusual to a modern ear, but it is easily translated. Start with that ungainly name of the commission. If “unalienable” sounds anachronistic, that’s because it is. Today, we normally use the word “inalienable.” But in the 18th century, the more common term was “unalienable.” The Declaration of Independence refers to “unalienable rights,” and there is little doubt the commission’s name is meant to recall that, in the words of the Declaration, the people are endowed with those rights “by their Creator.”

The State Department recently published a brief, enigmatic notice announcing the formation of a new Commission on Unalienable Rights. With a modest budget of $385,074 and merely advisory powers, the commission received little attention beyond head-scratching over its strange name. Yet the significance of the endeavor should not be overlooked. It puts the government’s imprimatur on an assault upon one of the cornerstones of modern liberalism: international human rights.

According to the commission’s draft charter, its job will be to explore “reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights” — rights of the sort that Abraham Lincoln and Martin Luther King Jr. upheld as ideals, the charter says.

This language may sound unusual to a modern ear, but it is easily translated. Start with that ungainly name of the commission. If “unalienable” sounds anachronistic, that’s because it is. Today, we normally use the word “inalienable.” But in the 18th century, the more common term was “unalienable.” The Declaration of Independence refers to “unalienable rights,” and there is little doubt the commission’s name is meant to recall that, in the words of the Declaration, the people are endowed with those rights “by their Creator.”

This supposition is reinforced by the references to “natural law” and “natural rights,” terms that have also fallen out of fashion. In the 18th century, educated people used the phrases to refer to universal moral laws that transcended national boundaries and that generally (though not always) were thought to reflect God’s will. With the rise of nationalism in the 19th century, these abstractions lost much of their grip on people’s loyalties.

Finally, there is “human rights discourse.” Normally, we refer to “human rights law,” embodied in numerous treaties that were negotiated and (mostly) ratified after World War II. With names like the Convention on the Rights of the Child and the Convention on the Rights of Persons With Disabilities, these treaties purport to bar governments from mistreating their citizens. Yet “discourse” means “talk.” The implication here is that the human rights that people talk about are not, despite the treaties, actually law. They’re something else — advocacy. And this advocacy is wrong: It has “departed from . . . natural law and natural rights.”

The protections offered by modern “human rights law” differ from those of the “natural rights” regime of the 18th century. Those were (more or less) embodied in the British constitutional tradition, the common law, and the U.S. Bill of Rights: rights to political participation — freedom of speech, for example — and protection of person and property. Modern human rights are both broader and narrower, encompassing “economic rights” (for example, rights to work, to health care and to education), rights to not be discriminated against on the basis of race or ethnicity, and, according to some interpreters, expansive rights to reproductive freedom. Modern human rights law de-emphasizes property rights and, to some extent, speech rights. In a word, it’s lefty.

Modern human rights have also morphed into something like a system of universal moral values that transcends specific treaties. The United States, virtually alone among nations, has refused to ratify most of these treaties and accordingly is technically not bound by them. But much “human rights discourse” rejects the notion that countries can opt out of the rights system. Quite a few scholars and an occasional U.S. Supreme Court justice believe, to the intense irritation of conservatives, that left-leaning human rights treaties that the United States has never ratified nonetheless override American law. The influence of “foreign law” — including “human rights discourse” — has been apparent in Supreme Court opinions limiting the death penalty and striking down the criminalization of same-sex “sodomy.” Most of the offending decisions were written by the court’s most enthusiastic proponent of foreign law, then-Justice Anthony Kennedy. As the late justice Antonin Scalia put it : “The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty . . . could be judicially nullified because of the disapproving views of foreigners.”

But today, other conservatives see an opportunity, and the Commission on Unalienable Rights is their declaration of intent. Its plainly stated goal is not just to wipe away the baleful foreign influence of human rights “discourse” but to revive (conservative) 18th-century natural law.

What does natural law require? Liberals, already dimly perceiving that they are about to be hoisted with their own petard, worry that natural law, in the hands of conservatives — specifically, Catholic conservative intellectuals, who kept alive the academic tradition of natural law long after mainstream secular intellectuals forgot what it was — means goodbye to reproductive rights and protections for sexual minorities. (ABC News reported that the Princeton professor Robert George, a prominent Catholic intellectual, natural-law theorist, and opponent of abortion rights and same-sex marriage, played a role in the creation of the commission; George did not respond to requests for comment from ABC or from The Washington Post.) The Commission on Unalienable Rights will, in other words, provide the ideological justification for the antiabortion foreign policy that the Trump administration has undertaken.

Natural law can also be used by conservatives to argue for expanded religious freedoms that override statutes with secular goals, and to push back against progressive government programs like universal health care. The “right to health,” a centerpiece of “human rights law,” is firmly rejected by natural-law theorists like George.

But the mission of the commission may be even bolder. If we take the idea of natural law seriously, it not only overrides statutes in foreign countries that protect abortion rights and respect same-sex marriage. It also overrides American laws that protect abortion rights and respect same-sex marriage. One can imagine a day when a Supreme Court justice, taking a page from Kennedy, invokes natural law — supposedly endorsed by the founders, after all, and embodied in the sacred Declaration — to vote to overturn Roe v. Wade and to prepare the path for an even holier grail, the abolition of state laws that grant abortion rights.

Liberals hoped that human rights, sanctified by the sacrifices of the victims of totalitarianism, would provide common ground in a world of competing ideologies. But what human rights actually helped produce was a liberal international order that has offended a great many people who do not share liberal values. The backlash began years ago in authoritarian countries, in developing countries that saw human rights as an affront to their traditions and as a mask for imperialist goals, and in highly religious countries. These countries advanced interpretations of human rights law that conform with their values or interests but made little headway against dominant elite opinion. What is new is that the government of the world’s most powerful nation, long acknowledged (if grudgingly) as the leader of the international human rights regime, has officially signed on to that backlash. Most of the offending decisions were written by the court’s most enthusiastic proponent of foreign law, then-Justice Anthony Kennedy. As the late justice Antonin Scalia put it : “The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty . . . could be judicially nullified because of the disapproving views of foreigners.”

But today, other conservatives see an opportunity, and the Commission on Unalienable Rights is their declaration of intent. Its plainly stated goal is not just to wipe away the baleful foreign influence of human rights “discourse” but to revive (conservative) 18th-century natural law.

But the mission of the commission may be even bolder. If we take the idea of natural law seriously, it not only overrides statutes in foreign countries that protect abortion rights and respect same-sex marriage. It also overrides American laws that protect abortion rights and respect same-sex marriage. One can imagine a day when a Supreme Court justice, taking a page from Kennedy, invokes natural law — supposedly endorsed by the founders, after all, and embodied in the sacred Declaration — to vote to overturn Roe v. Wade and to prepare the path for an even holier grail, the abolition of state laws that grant abortion rights.

Liberals hoped that human rights, sanctified by the sacrifices of the victims of totalitarianism, would provide common ground in a world of competing ideologies. But what human rights actually helped produce was a liberal international order that has offended a great many people who do not share liberal values. The backlash began years ago in authoritarian countries, in developing countries that saw human rights as an affront to their traditions and as a mask for imperialist goals, and in highly religious countries. These countries advanced interpretations of human rights law that conform with their values or interests but made little headway against dominant elite opinion. What is new is that the government of the world’s most powerful nation, long acknowledged (if grudgingly) as the leader of the international human rights regime, has officially signed on to that backlash.

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

Professor Posner confirms what folks like me have been saying for some time now: under Trump and his version of the GOP, America aspires to go from being a defender of human rights to being a leading abuser of those rights.

Forget the attempted “slight of hand” redefinition of human rights by a White Nationalist minority who has seized control of our Government. Kids in cages, abusing women, enabling gangs and cartels, suspending due process, blocking access to voting, dehumanizing the Hispanic and LGBTQ communities, greed, selfishness, grift, undermining the hard earned rights of African Americans, and promoting and protecting religious bigotry, among other disreputable developments, neither conforms to any version of human rights nor represents the views of the majority of Americans.

Make no mistake about it. No matter how flawed , the human rights instruments crafted as a result of “liberal Western democracy” in the post-World War II era have saved millions of human lives and prevented unfathomable additional human carnage. Undoubtedly, that makes Trump and some of his supporters supremely unhappy.

Those of us who continue to maintain the “quaint” view that all persons are entitled to “life, liberty, and the pursuit of happiness” (no matter how imperfectly conceived and disingenuously implemented by our Founding Fathers) had better wake up and join the battle! For, Trump and his far right minority zealots have every intention of reversing the results of World War II and making the hate, bias, disregard for truth, toxic nationalism, and contempt for the majority of the world’s humans exhibited by the “the then losers” the new international norm.

Don’t let them turn back the clock to 1939 in 2019!

PWS

06-18-19

DUE PROCESS: 9th Cir. Might Be Afraid Of Trump, But U.S. Immigration Judge Scott Simpson Isn’t!

https://www.sandiegouniontribune.com/news/immigration/story/2019-06-14/judge-orders-dhs-to-keep-man-in-u-s-for-immigration-hearings-instead-of-returning-to-mexico

Kate Morrissey reports for the San Diego Union-Tribune and LA Times:

Judge orders U.S. to hold asylum seeker

Doubtful about his mental state, jurist prevents migrant from being sent to Mexico.

By Kate Morrissey

SAN DIEGO — An immigration judge has ordered the Department of Homeland Security to keep a Honduran asylum seeker in the United States while he waits for his court proceedings, instead of returning him to Mexico again under a Trump administration program.

Judge Scott Simpson said that after evaluating the man’s mental competence in a special hearing on Friday, he found that the man would need safeguards in his case to ensure due process. He ordered one put in place immediately: to remove the man from a program known officially as Migrant Protection Protocols and more widely as “Remain in Mexico.”

“I find that he lacks a rational and factual understanding of the nature of the proceedings,” Simpson said in issuing his order.

This is the first time that a judge has made such a ruling since the program was implemented in January, according to advocates who have been monitoring immigration court proceedings.

The program requires certain asylum seekers from Honduras, El Salvador and Guatemala to wait in Mexico while their cases progress in immigration court. The man has been waiting in Tijuana as part of the program for several months.

A Customs and Border Protection guide for officials implementing the program says that migrants with known physical or mental health issues should not be included.

“It’s a big deal that a judge recognized that there was a predatory nature to having put this person in the ‘Migrant Persecution Protocols,’ ” said Ian Philabaum of Innovation Law Lab, calling the program a name used by some immigrant rights advocates. “He wasn’t going to have a chance, and now he gets a chance.”

At the man’s first hearing in March, Simpson quickly became concerned that the man might have a mental competency issue that would make him ineligible for the program or require other protections. He ordered DHS to evaluate the man’s mental state.

Simpson asked government attorneys at each hearing after that whether the man’s mental state had been evaluated and whether the government believed he should continue to be included in the program.

Each time, the government attorney responded that the man should continue in MPP.

Still skeptical, Simpson told Immigration and Customs Enforcement attorney Dan Hua to be prepared to give details Friday about DHS’s evaluation of the man before he was returned to Mexico. When the judge came into court Friday morning, Hua was not able to answer that question.

“The government’s inability to provide that information is simply not excusable,” Simpson said. He gave Hua 30 minutes to find out answers.

Hua said immigration officials at the port of entry had evaluated the man each time he’d come to court, meaning that as of Friday, he’d been evaluated four times.

The attorney could not produce evidence showing what the evaluation observed or what standard it used when the judge pressed for more details.

Philabaum said that fact was significant.

“That assessment of the mental competency was performed on four different occasions, and on four different occasions, according to the U.S. government attorney, their assessment was he was perfectly competent to proceed with his immigration case representing himself,” Philabaum said. But in the man’s “first hearing, it took the immigration judge approximately two minutes to realize there was an issue of competency here.

“Whatever type of standard that CBP has instituted to assess the competency of an individual to be eligible, according to the immigration judge today, it has failed.”

DHS officials, CBP officials and Department of Justice officials did respond to a request for comment.

Simpson decided to do his own evaluation of the man’s mental state under an immigration court precedent known as the Matter of MAM.

He listed the rights that the man has, such as the right to present evidence and the right to question witnesses. He asked if the man understood his rights.

“Um, yes. I need more,” said the man through a Spanish interpreter. “I need more because here I only have some letters, some birth certificates. They’re not translated into English yet.”

“Sir, I’m the immigration judge in your case. It’s my job to decide whether you can stay in the United States,” Simpson said. “In your own words, tell me who am I and what’s my job.”

“I cannot understand you,” the man responded.

In the end, the man was only able to appropriately respond to simple questions such as the date and what city he was in. He told the judge he had not had much schooling and couldn’t read or write.

ICE later confirmed the man is pending transfer to the agency’s custody. He could be taken to an immigration detention facility or released “on parole” into the U.S. to a sponsor while he waits for his next hearing.

Simpson said that depending which option the government chooses, other safeguards may be necessary, including providing an attorney for him if he’s detained.

Morrissey writes for the San Diego Union-Tribune.

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

Every day the human carnage mounts as the 9th Circuit continues to “sponsor” Trump’s illegal, deadly, and unconstitutional “Remain in Mexico Program.” Interesting how a few non-life-tenured Immigration Judges in San Diego and one courageous U.S. District Judge in the Southern District of California seem to be the only Federal officials interested in either the rule of law or the Due Process Clause of our Constitution. Go figure!

Congrats to Judge Scott Simpson for standing up for the rule of law and the rights of the most vulnerable in the face of massive dereliction of duty by those higher up the line.

Sadly, unlike the 9th Circuit, Judge Simpson lacks authority to enjoin further violations of the law and human rights by the Trump Administration. How many more human beings will suffer, be wronged, and perhaps die as a result of the 9th Circuit’s complicity in scofflaw behavior having little or nothing to do with protecting our borders or any other legitimate policy end and everything to do with punishing and dehumanizing those who seek justice under our laws.?

PWS

06-17-19

DERELICTION OF DUTY: 4th Cir. Exposes BIA’s Incompetence & Anti-Asylum Bias, Yet Fails To Confront Own Complicity — SINDY MARILU ALVAREZ LAGOS; K.D.A.A., v. WILLIAM P. BARR

http://www.ca4.uscourts.gov/opinions/172291.P.pdf?fbclid=IwAR0V6wyNPGePFSgscsU5Qw-PQxasjIHuwnGXYQr4RraWbpMse6GOc4bAJqY

DIAZ, 4th Cir., 06-14-19, published

PANEL: GREGORY, Chief Judge, and DIAZ and HARRIS, Circuit Judges.

OPINION BY: PAMELA HARRIS, Circuit Judge

KEY QUOTE:

Sindy Marilu Alvarez Lagos testified credibly that she and her then-seven-year-old daughter, natives and citizens of Honduras, were threatened with gang rape, genital mutilation, and death if they did not comply with the extortionate demands of a Barrio 18 gang member. Unable to meet those demands and fearing for their lives, Alvarez Lagos and her daughter fled to the United States, where they sought asylum, withholding of removal, and protection under the Convention Against Torture.

Now, almost five years later, an immigration judge and the Board of Immigration Appeals have issued a total of three separate decisions denying Alvarez Lagos’s claims. The government defends none of those decisions, including the most recent, which came after we agreed, at the government’s request, to remand the case for reconsideration. Instead, the government admits that errors remain, but argues that we should leave them unaddressed and simply remand once again so that the agency may have a fourth opportunity to analyze Alvarez Lagos’s claims correctly.

We decline that request. A remand is required here on certain questions that have yet to be answered, or answered fully, by the agency. But we take this opportunity to review the agency’s disposition of other elements of Alvarez Lagos’s claims. For the reasons given below, we reverse the agency’s determination with respect to the “nexus” requirement for asylum and withholding of removal. And so that they will not recur on remand, we identify additional errors in the agency’s analysis of the “protected ground” requirement for the same forms of relief, and in the agency’s treatment of Alvarez Lagos’s claim under the Convention Against Torture.

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

It’s partially on the Article IIIs. Great decision in many ways. But, this type of injustice occurs daily in our unconstitutional U.S. Immigration Courts. How many Central American asylum applicants get this type of representation—Steve Shulman of Akin Gump for a pro bono lawyer, Tom Boerman as an expert? Not very many.

How many can be this persistent, particularly if detained or sent to Mexico to wait? Almost none! I think that if these respondents were in “Return to Mexico” they would have long ago been forced to give up and accept “Death Upon Return.”

This case should have been a “no brainer grant” five years ago. Could have been done at an Asylum Office (under a more rational system) or by DHS stipulation. THIS abuse of the legal system and gross waste of public resources by DHS and DOJ is the reason why we have unmanageable Immigration Court backlogs, not because asylum applicants and their representatives assert their legal rights.

The Office of Immigration Litigation (“OIL”) didn’t even bother to defend any of the EOIR actions here! So, after five years why is it “Due Process” for the Fourth Circuit to give the BIA yet another opportunity to come up with bogus reasons to deny asylum.

An Article III Court fulfilling its oath to uphold the laws and Constitution could have ordered this case to be granted and either exercised contempt authority against those at DOJ responsible for this mess or ordered an independent investigation into the judicial incompetence and bias evident here. At the least, the court should have removed any judge having had a role in this abomination from any future proceedings involving these respondents.

Cases such good as this also illustrate the continuing dereliction of duty by Article III Courts who continue to “go along top get along” with the absurdly unconstitutional position that unrepresented asylum applicants can receive “Due Process” in today’s overtly unfair and biased Immigration Courts. The Due Process clause applies to all persons in the U.S., and the right to a fair asylum hearing exceeds the rights at stake in 98% of the civil litigation and most of the criminal litigation in the Federal Courts. If the Article III Courts actually viewed asylum applicants as “persons,” that is “fellow human beings,” rather than dehumanized “aliens,” this farce would have ended decades ago! Folks represented by Steve Schulman and Akin Gump can’t get a “fair shake” from EOIR; what chance does any unrepresented applicant have?

You reap what you sow, and what goes around comes around! If Article III Courts want to be taken seriously and respected, they must step up to the plate and stop the systematic bias against asylum applicants (particularly women and children from Central America) and the abuses like this occurring every day in our unconstitutional U.S. Immigration Courts!

History is watching and making a record, even if those wronged by the Article IIIs all too often don’t survive or aren’t in a position to confront them with their dereliction of legal duties and the obligations human beings owe to each other.

PWS

06-17-19

BAD LAW: BIA Evades Supremes Again To Aid DHS Enforcement — Matter of NAVARRO GUADARRAMA, 27 I&N Dec. 560 (BIA 2019)

https://go.usa.gov/xmutz

Matter of NAVARRO GUADARRAMA, 27 I&N Dec. 560 (BIA 2019)

BIA HEADNOTE:

Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.

PANEL: Appellate Immigration Judges MALPHRUS, MANN, and KELLY

OPINION BY: Judge Ana L. Mann

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

Seems to me the BIA got this one all wrong. The Florida statute was amended specifically to broaden the definition of “marihuana” to include things that aren’t marihuana. How can the BIA say that there is no chance of prosecution? Since stalks, etc. are now “marihuana” it wouldn’t even be a defense to point out that you just possessed stalks.

The BIA has twisted item the concept of “far fetched” to include things that the legislature clearly contemplated when amending the statute.

The Supreme’s decision in Moncrieffe was clearly intended to be ameliorative. But the BIA has turned it into a “sword” for DHS. Moreover, since “stalks only” would no longer be a defense, why would any state case discuss it?

Generally the “Ferreira test” is impossible for any unrepresented respondent to meet. Indeed, I doubt that most detention center judges would have access to the necessary materials to research something so technical.

As my good friend and colleague in the Roundtable of Retired Judges, Judge Jeff Chase, added:

The Supreme Court and some of the circuits created case law that was designed to be clearer – i.e. it doesn’t matter what the respondent actually did, or what the actual sentence was, just look at the least culpable behavior covered by the statute.And the Supremes and some circuits obviously intended it to be ameliorative, given the harsh consequences of the immigration laws.

The BIA sees its mission as trying to render those higher court decisions meaningless.

How far we have come from an organization supposdly dedicated to using teamwork and best practices to “guarantee fairness and Due Process for all.”

PWS

06-16-19

CONTINUING JUDICIAL EDUCATION FOR ARTICLE III JUDGES: “Kids In Cages” Ought To Be Displayed Outside Every Federal Courthouse & The Supremes So That “Robed Enablers” Can See The Results Of Their Abdication Of Constitutional Duties!

https://apple.news/Au_bQMKN3QxmsBKokkqyP3w

Sarah Ruiz’s-Grossman reports for HuffPost:

U.S. NEWS

06/12/2019 05:25 PM EDT

Cages With ‘Kids’ Pop Up Around NYC To Protest Immigrant Detention

The art installations were meant to bring awareness to the horrific conditions children and other migrants face at the southern U.S. border.

Some people in New York City were confronted with an alarming image as they walked down the street on Wednesday morning: a chain-link cage on the sidewalk containing a child-size mannequin wrapped in a foil blanket, with audio playing of migrant children crying.

More than 20 cages were placed around Manhattan and Brooklyn ― from Union Square to the Barclays Center sports arena ― as part of a campaign called #NoKidsInCages by immigration nonprofit RAICES and ad agency Badger & Winters.

It was meant to draw Americans’ attention to the children and other migrants being held in alarming conditions at the U.S.-Mexico border.

Speakers in the cages played the viral recording released by ProPublica last summer of kids wailing for their “mamá” and “papá” after having been separated from them at the border as a result of the Trump administration’s “zero tolerance” immigration policy.

“We want to bring this back to the consciousness of the American people,” RAICES CEO Jonathan Ryan told HuffPost. “One of the many unfortunate consequences of the repeated traumatic stories coming from the border is that, as horrified and angry as people have been, we also become desensitized. It’s important for people … to be confronted with the reality that this is about children, human beings, whose lives are forever affected.”

“This is being done in our name by people who we elected,” he added. “And if we don’t do something to stop this, this will become who we are.”

About two dozen cages were dropped around the city from about 4 a.m. to 5 a.m., Ryan said. By midafternoon most of them had been taken down by police or city employees, with three remaining around 2 p.m., per Ryan. The New York Police Department confirmed to HuffPost that more than half a dozen cages had been removed around Manhattan, but did not respond to questions as to why.

The online campaign associated with the installations recalls the family separations under President Donald Trump’s hard-line zero-tolerance policy, which led to the separation of thousands of children from their parents last year. The policy sparked protests nationwide and was reversed by executive order in late June. But a January report from the Department of Health and Human Services found the administration may have separated thousands more kids from their families than was previously known, and it did not know how many or whether they were reunited.

RAICES also wants people to become aware of other issues migrants face, Ryan said.

He noted undocumented immigrant families are still separated “routinely” at the border, including when migrant kids are split from other guardians like uncles and aunts or older siblings. Separations occur inside the country too, he said, when a child’s undocumented mom or dad is arrested by immigration agents, for instance in a workplace raid.

U.S. Customs and Border Protection apprehended over 109,000 people at the border in April ― more than double the number of migrants detained during that month last year. A majority of the migrants apprehended were either families traveling together or unaccompanied kids.

A Department of Homeland Security watchdog, reporting on Border Patrol facilities in El Paso, Texas, found last month that detained migrants were kept in dirty and extremely crowded conditions, forcing some people to stand on toilets to get some breathing room.

Last week, Trump said he reached an agreement with Mexico that includes “rapidly” returning to Mexico anyone who crosses the border seeking asylum in the U.S. Advocates are concerned about the dangerous conditions in cities such as Tijuana and Ciudad Juárez, where more migrants will now be forced to wait as their claims are processed.

“When the American people hear stories of this problem being fixed by the ‘remain in Mexico’ policy, it hasn’t been fixed, it’s just further from their view,” Ryan said. “The suffering will only increase.”

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

Ah, life in the ivory tower of the Article III Federal Judiciary, where you seldom are confronted with the human faces or ugly reality of your abuses and failures to protect the human rights of others.

The “Remain in Mexico” Program is an ongoing affront to our Constitution, the rule of law, and simple human decency for which the judges of the Ninth Circuit Court of Appeals who are enabling this ongoing humanitarian outrage and giving it “legal cover” should be held fully morally and historically accountable!

PWS

06-13-19

9TH CIRCUIT JUDGES COMPLICIT IN HUMAN RIGHTS & LEGAL VIOLATIONS INFLICTED ON TERRIFIED TEEN ASYLUM APPLICANTS: Reuters Study Exposes How Disingenuous Article III Judges Are Letting Trump Administration “Get Away With Potential Murder” Under Clearly Illegal, Unconstitutional, & Incompetently Administered “Remain In Mexico” Abomination!

https://www.reuters.com/article/us-usa-immigration-returns-exclusive/exclusive-asylum-seekers-returned-to-mexico-rarely-win-bids-to-wait-in-u-s-idUSKCN1TD13Z

(Reuters) – Over two hours on June 1, a Honduran teenager named Tania pleaded with a U.S. official not to be returned to Mexico.

Immigration authorities had allowed her mother and younger sisters into the United States two months earlier to pursue claims for asylum in U.S. immigration court. But they sent Tania back to Tijuana on her own, with no money and no place to stay.

The 18-year-old said she told the U.S. official she had seen people on the streets of Tijuana linked to the Honduran gang that had terrorized her family. She explained that she did not feel safe there.

After the interview, meant to assess her fear of return to Mexico, she hoped to be reunited with her family in California, she said. Instead, she was sent back to Mexico under a Trump administration policy called the “Migrant Protection Protocols”(MPP), which has forced more than 11,000 asylum seekers to wait on the Mexican side of the border for their U.S. court cases to be completed. That process can take months.

Tania’s is not an unusual case. Once asylum seekers are ordered to wait in Mexico, their chances of getting that decision reversed on safety grounds – allowing them to wait out their proceedings in the United States – are exceedingly small, a Reuters analysis of U.S. immigration court data from the Executive Office for Immigration Review (EOIR) shows.

. . . .

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

Read the full description of the Trump Administration’s judicially enabled all out assault on the legal, Constitutional, and human rights of vulnerable asylum seekers at the above link.

A complicit panel of 9th Circuit Judges vacated a proper lower court injunction that was preventing this type of intentional child abuse by the Trump Administration. Here’s that panel’s “head in the sand” opinion in Innovation Law Labs. https://immigrationcourtside.com/wp-content/uploads/2019/05/Innovation-Law-Lab-19-15716.pdf.

It’s worth noting that almost every “ameliorating exception” described in the first paragraph of the panel’s opinion is demonstrably untrue — children and those clearly in danger are being returned and the “discretionary parole” is largely a fraud that seldom is granted — according to the Government’s own data (which likely is also falsified or manipulated to some extent to mask or distort abuses). In other words, a “three-reporter panel” of Reuters is more interested and capable of getting to truth than a panel of life-tenured judges.

Oh, that it could be these judges’ kids or grandkids separated from family and sent to live on the mean streets of Tijuana while pursuing their legal rights under US law. Really, how do these child abusers and human rights scofflaws hiding in judicial robes sleep at night?

Guess the can’t hear the screams and moans of those whose rights they are failing to protect and whose human dignity they reject. I’ve heard eyewitness accounts and seen video evidence from the pro bono lawyers courageously (and sometimes at the risk of their own health and safety) trying to protect the lives and rights of asylum seekers at the Southern Border from these abuses of human rights that are enabled by “Remain in Mexico” (a/k/a the disingenuously named “Migrant Protection Protocols”). The truth is no secret for those who actually seek it rather than to ignore it.

Complicit Article III Judges and Government lawyers are keys to Trump’s “dehumanization” program. History must hold them accountable for their abuses of humanity.

PWS

06-13-19

AMERICA’S SHAME: Congress Dithers, Life-Tenured Article III Circuit Judges & Supreme Court Justices Shirk Their Duty, While Trump’s “False Courts” Violate Constitutional, Statutory, Treaty, & Human Rights On A Daily Basis With Impunity! — History Will Remember Those Who Are Complicit In & Who Are Morally Responsible For Unlawful Killings & Other Unspeakable Acts Committed Against Those Most Vulnerable Who Are Merely Seeking Fairness Under Our Broken & Fraudulent Justice System!

NEW REPORT EXAMINES WEAPONIZATION OF IMMIGRATION COURT SYSTEM

Advocates Launch Immigration Court Watch App to Ensure Greater Accountability, Transparency.

No, American institutions aren’t “standing up” to Trump. From the Supremes legally wrong , immoral, and unconstitutional decision in Jennings, to their licensing of blatant racial and religious bias in Travel Ban 3.0, to the Ninth Circuit’s complicity in the mocking of legal, statutory, and Constitutional rights under the fraudulent and illegal “Remain in Mexico,” which they now “own” lock stock, and barrel, to the Eleventh Circuit’s refusal to stop the “law, asylum, justice, and human dignity free zone” in the Atlanta Immigration Courts, Article III Judges are ignoring their oaths of office and turning blind eyes to immigration outrages that are transparent on the records they review and have been building in plain sight for years.

Those in positions of power who fail to fulfill their Constitutional duty to prevent abuse of the most vulnerable among us deserve to be condemned by public opinion and by history. And that goes for Article III Judges, as well as legislators, politicos, and bureaucrats.

PWS

06-12-19

PWS

06-12-19

NATIONAL FRAUD: IMMIGRATION COURTS ARE NOT “COURTS” — New Scholarship Shows How Immigration “Courts” Are Actually Hierarchical Bureaucracies Masquerading As Courts, Incorporating The WORST Features Of Both!

Bureaucrats in Robes final

BUREAUCRATS IN ROBES: IMMIGRATION “JUDGES” AND THE TRAPPINGS OF “COURTS”

AMIT JAIN*ABSTRACT

As U.S. immigration policy and its human impact gain popular salience, some have questioned whether immigration courts—often the first-line adjudicators of deportation—are “courts” at all in the American adversarial legal tradition. This Article aims to answer this question through a focus on the role of the immigration judge (IJ). Informed by in-depth interviews with twelve former IJs and three former supervisory officials, I argue that immigration courts present with superficial hallmarks of adversarial courts, but increasingly exhibit core features of a tightly hierarchical bureaucracy. Although not all features of an immigration bureaucracy are inherently unde- sirable, masking a bureaucracy with judicial trappings results in a deceptive facade of process that likely limits scrutiny from federal courts and calms public discontent with harsh immigration laws. In light of this phenomenon, enhancing IJ independence through the creation of an Article I immigration court would solve some problems with immigration adjudication but risk papering over others. Instead, achieving a fair system will require both procedural and substantive reforms.

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Read Amit’s full article at the above link.

Yes, I recognize that Amit undercuts my arguments for an immediate halt of this system and change to Article I without waiting for other reforms to “humanize” immigration law and put them more in line with the actual national perception of immigrants (which, as Amit points out, is nowhere near as racist and inhuman as Trump’s White Nationalist restrictionist abomination now being peddled by Trump, Pence, many in the GOP, at DHS, and most disturbingly, at DOJ. For example, most Americans would favor taking care of “Dreamers” now, without all the restrictionist “poison pills” attached). I agree that other practical and humanizing reforms are necessary; but without immediate Immigration Court intervention and reform every other immigration reform becomes meaningless and innocent people will continue to die, be tortured, and be abused “on our watch.”

Immigration Court reform can’t wait! Every day, the statute, our Constitution, international treaties, our national values, and human dignity are being mocked and destroyed by what is happening in our Immigraton Courts under the “Minister of Injustice” Bill Barr and his lawless and spineless sycophants in EOIR Management.

It’s past time for the Article III Courts to stop screwing around, do their Constitutional duty, and put a screeching halt to this abomination and blot on our national conscience. Stop these “Fake Courts” in their tracks!

No more “removal orders” until Congress creates an independent Immigration Court system that passes legal and Constitutional muster and complies with our treaty obligations. And, until that happens, the DOJ should be forbidden from any further meddling in the Immigration Courts. If the Immigration Court System is to continue to operate on an interim basis, it should be under an “Order of Supervision” from Article III Circuit Judges just as was done with Constitutionally deficient and defiant school systems in the South following Brown.

Either that or the Article III Courts should appoint an active or retired Article III Judge as a “Special Master” with authority to insure fair, impartial, and legal operation until Congress corrects these flaws.

Allowing human beings to be “degraded and railroaded” back to life threatening situations, often after having been abused, humiliated, threatened and mistreated by so-called “judges” and their White Nationalist overlords is no laughing matter! It’s a national disgrace, the elimination of which should be our highest national priority!

PWS

06-12-19

FRANZ KAFKA’S AMERICA: At the “Jena Gulag” Everyone’s A Criminal Including Attorneys Committing The “Crime” Of Representing Their Clients!

https://lawprofessors.typepad.com/immigration/2019/06/guest-post-m-isabel-medina.html

From ImmigrationProf Blog:

Escobedo v. Illinois(1964) – I remember the case from law school and it is one of those cases that stay with you. It’s a case that spoke so firmly to our profession and the constitutional right that our profession guards – the right to counsel.   It’s the case where the attorney is trying to see the client, and the client keeps asking to see the attorney, and they are both at the police station, but the police continue to deny both the ability to meet and talk before the person is interrogated by police. The case fascinated me because the situation seemed so remarkable, really, incredible, and, of course, the Supreme Court, at that time, gave what I thought the correct response. I still think it is the correct response but what I missed then, and sometimes now, is how many of us think, then and now, it was not. But Escobedo is a Sixth Amendment case that applies in the context of criminal prosecutions so although I have thought of it often in the past three weeks, it is uncertain precedent to rely on in the context of immigration proceedings. It also strikes me now who Escobedo is, and I remember when we first discussed this case in law school, the complete absence of a discussion about his race and national origin, in the classroom.

I also think often of Fong Yue Ting v. United States (1893) and the U.S. Supreme Court’s reasoning that “The order of deportation is not a punishment for crime,” And what this reasoning means in a world where persons are incarcerated, prevented from touching, hugging and kissing their closest relatives, including their children, simply because they are immigrants in removal proceedings (a civil process, the Court continues to tell us – not a criminal process) and where persons are not allowed to meet with their attorneys in a room in which they can go over documents or testimony together, but instead meet only in cubicles that are completely separated from each other except for a quarter inch slit at the bottom of a plastic/glass divider. So it is literally physically impossible to point at a statement in a document and ask the client a question about that statement. And it is in fact physically impossible for a client to hand over to their attorney documents. They have to be taken apart and slipped across through that quarter inch slit. It took a client over an hour to slip over to me part of the file.

This is the world at La Salle Detention Center in Jena, Louisiana, one of the Geo owned and managed detention centers in Louisiana that currently houses only immigrant detainees. But the guards at La Salle know better – they are housing criminals at La Salle and the guards think of them as criminals, call them criminals, and treat them like criminals. Criminals, apparently, are undeserving of any kind of protection. The reason for the cubicle, I am told, is to make impossible the passing of contraband. I ask what contraband. I ask further, by attorneys? Attorneys are bringing in contraband? I ask amazed. And the answer I am given is yes, you’d be surprised. And I persist, What? What kind of things are attorneys bringing in? And the answer I get eventually is things like food.

At La Salle, inmates are separated and designated by clothing of different colors into different groups based on their alleged “dangerousness” or “security.” Inmates are written up for asking questions or making requests or complaining about things like missed mail or failures to deliver mail. Inmates are also restricted in accessing outside time, private time, and so many of the things those of us who are free take for granted, and those of us who are committed to serve a criminal sentence are denied. But these “inmates” aren’t serving a criminal sentence, as I remind the guards. They are civil detainees – they are not supposed to be treated like criminals serving a criminal sentence.

At La Salle, civil detention is criminal detention.   I have had greater physical access to persons convicted of murder or persons who’ve been accused of criminal offenses. I’m somewhat nonplussed by the restrictions on meeting with someone who is facing removal from this country; and the impact of those restrictions on their right to counsel.

But I am even more nonplussed when those restrictions start being applied directly to me. In order to see a client, I have to turn my car keys in to the facility. I cannot take my bag or purse with me. This is for my safety I am told. Every time I visit a person at La Salle, I ask for access to the person. I know there is a room at La Salle in the visiting area that allows for that. I know that the facility has made this room available to consular officials visiting persons in the facility. But the facility refuses to make this room available for attorney-client visits. I ask every time and am refused every time. I leave multiple phone messages for the Warden but no one ever calls me back and no one with authority ever agrees to talk to me.

When I come for the hearing at La Salle Immigration Court with the family of a person I am representing, the guard refuses to allow the children of the person into the courtroom. I ask why not. Federal policy is that children 12 and older can attend court proceedings. There are signs in the waiting room at the facility that state this. But when I come with six law students and the family, the officer says no they have to be 15 and older (after looking the children over). So I ask why again. I explain that I’ve checked with the Court administrator and federal guidelines and the ICE–ERO on the case and the Court administrator said the children were allowed to attend. No one had indicated otherwise. So the officer goes off to check with someone. When she returns she says the ICE officer in charge of the facility has determined that the children cannot go in. I ask why? She says that’s what he’s decided. I say may I speak to him. That is not consistent with the federal policy and the court administrator approved it. I’d like to speak to him. She goes out again and comes back a bit later. Then a person not in uniform comes in waves to me and takes me into a bigger office. There he proceeds to threaten me with arrest – first, it sounds like he is going to arrest me himself but then he threatens that he is going to call the sheriff and have the sheriff arrest me. I ask him why he would do that.  I am just trying to find out why the children can’t attend the hearing, given that it’s federal policy and I’ve gotten approval of the court administrator. He is physically shaking with anger as he tells me again he is going to call the sheriff and have me arrested. I agree to be arrested but remind him that the facility operates by force of law and regulation – it can’t operate as if law doesn’t apply here. I am an attorney, I explain, I have to be able to assert my client’s interests.

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Who are the “real criminals” here?

It takes lots of corruption, cowardice, and complicity to make this happen: A Congress that doesn’t care, a Supreme Court that disingenuously manufactures ridiculous legal fictions and turns a blind eye to glaring Constitutional violations, Article III Courts who can see that the results are inherently biased, coercive, and unfair but look the other way, a thoroughly corrupt Attorney General who has no interest whatsoever in justice, complicit politicos and bureaucrats at DOJ, EOIR, and DHS willing to violate ethical standards and their oaths of office, and those minions at the “bottom of the pyramid” who glory in the chance to exercise power in an arbitrary and abusive way.

Thanks goodness for dedicated, courageous lawyers like Isabel who are members of the “New Due Process Army,” fight for the legal rights of the most vulnerable among us, refuse to give in to the oppressors, and document and expose the vileness and lawlessness of the Trump Administration and its many enablers and retainers like Geo and its guards.

Your tax dollars at work!

PWS

06-11-19

BIA SAYS IT’S FINE FOR IMMIGRATION JUDGES TO HELP OUT ICE ENFORCEMENT – Read Hon. Jeffrey S. Chase On Latest One-Sided Decision In Matters of Andrade Jaso and Carbajal Ayala.

https://www.jeffreyschase.com/blog/2019/6/7/the-bia-and-selective-dismissal

Jun 7 The BIA and Selective Dismissal

On May 31, the BIA published a precedent decision in Matters of Andrade Jaso and Carbajal Ayala. In that decision, Board Member Garry Malphrus (writing for a panel that included Hugh Mullane and Ellen Liebowitz) held that immigration judges have the authority to dismiss removal proceedings upon a finding that it is an abuse of the asylum process to file a meritless asylum application with USCIS for the sole purpose of seeking cancellation of removal in proceedings before the immigration court.

As always, some context is required. Cancellation of removal is a relief available to those who have been in the U.S. for at least 10 years, have led a generally clean life here, and have a child, spouse, or parent who is a U.S. citizen or green card holder who would suffer a very high degree of hardship if their noncitizen relative were to be deported. The hardship might be to elderly parents for whom the noncitizen is a necessary caregiver, or to a spouse with a serious medical or psychological condition, or children with special needs. But unlike most other forms of relief, which usually involve the mailing of an application to USCIS, cancellation of removal may only be requested from an immigration judge after the applicant is placed in removal proceedings in immigration court.

Once, an attorney who felt his client had a strong enough claim would arrange with the ICE investigations unit to process the client and place her or him into removal proceedings. A number of years ago, under the Obama Administration, ICE discontinued this practice. According to a former ICE official, the reason given by the investigations office for the change was that it is not their job to help people obtain benefits.

With this decades-old avenue suddenly closed, attorneys asked the ICE office of general counsel for guidance. ICE’s own response: apply for asylum with USCIS. Any asylum applicant not granted is referred to an immigration judge, where the applicant can then apply for any relief, including cancellation of removal. This answer was confirmed at a high level in ICE headquarters, which assured that there was nothing wrong with filing for asylum for the sole purpose of applying for cancellation of removal before an immigration judge.

It is worth noting that ICE’s present solution places a very unfair burden on the USCIS Asylum Offices, which are already overwhelmed with the backlog of asylum claims and credible and reasonable fear interviews. The workload of individual asylum officers is untenable at present. The simple and obvious solution would be to have ICE return to processing those wishing to be placed into proceedings, but that’s a matter for DHS to work out internally. In the meantime, applying for asylum remains the only avenue for cancellation of removal candidates.

The question obviously arises as to how an immigration judge can find the following of DHS’s own recommendation to be an abuse of the asylum process, or how such argument can be raised by attorneys employed by the exact ICE office that came up with the suggestion in the first place.

Such a position might have been justifiable under the Obama Administration, which in response to the growing case backlog created a system of prioritization, which included the closing out of cases not considered urgent. However, as we all know, the Trump Administration did away with such priority system, on the apparent belief that everyone should be deported immediately. Those cases closed as non-priority under Obama are being forced back into an already overloaded system. The press is filled with stories of a pizza delivery man, or a father dropping his child at school being arrested, detained, and placed into removal proceedings. Of course, we have all read the reports of children being torn from their parents and detained separately (undoubtedly causing permanent psychological damage), and, if lucky enough to be released, sped through the system because this administration believes everyone deserves to be deported.

Some immigration judges used their authority to administrative close, delay, dismiss, or terminate proceedings where appropriate in the hopes of affording justice to those caught in proceedings. Former attorney general Jeff Sessions reacted quickly, issuing binding decisions prohibiting such efforts. In Matter of Castro-Tum, Sessions stripped IJs of their long-standing ability to administratively close cases. In Matter of L-A-B-R-, Sessions made it prohibitively more difficult for IJs to even grant continuances for legitimate reasons. And in Matter of S-O-G- & F-D-B-, Sessions held that immigration judges have no inherent authority to dismiss or terminate proceedings, a move consistent with his overall goal of downgrading independent judges to the role of assembly line workers. Sessions also stated that an IJ may dismiss proceedings only under the limited circumstances set out in the regulations.

The applicable regulation, 8 C.F.R. § 239.2(a), lists seven circumstances under which DHS (but not the private bar) may seek dismissal of proceedings. The first four, where the respondent turns out to in fact be a national of the U.S., to not be deportable from or inadmissible to the U.S., to be deceased, or to not be in the U.S., are pretty obvious reasons to dismiss proceedings, as all involve situations in which, due to either error or intervening events, there is no living respondent in the U.S. who is removable under the law, and thus no case to pursue in court. Reason 5 involves a very specific situation where one granted conditional residence as the spouse of a U.S. citizen or permanent resident was placed into proceedings because she or he did not timely file the petition to remove the condition on their residence within the required time frame, but it turned out they filed late for a legitimate reason permitted by the law. Reason 6 is where the NTA was improvidently issued. An example of that is where after issuing an NTA, DHS realizes that the respondent was already issued an NTA at an earlier time, and therefore seeks to dismiss the second NTA and reopen the first proceeding.

Reason 7 is where circumstances have changed since the NTA was issued to such an extent that continuation of the proceedings is no longer in the best interest of the government. This is obviously meant to be a broadly-defined category. However, it clearly doesn’t cover the situation arising in Andrade Jaso. DHS advised those wishing to apply for cancellation of removal but lacking a path to be placed into proceedings to file an asylum application for the sole purpose of being referred to the immigration court. The DHS asylum offices are so cognizant of the situation that a pilot project was briefly instituted to allow asylum applicants with over 10 years of residence to waive their asylum interview. So what is the drastically changed circumstance? Furthermore, all of the first 6 examples involve situations where the person in proceedings is not removable, because they are dead, outside of the U.S., actually in lawful status, etc., or may be removable, but there is some technical defect with the issuance of this specific NTA. All focus on whether there is a respondent who is properly removable; none allow for termination of the proceedings of a removable respondent based on what they might be seeking as a relief. But Andrade Jaso was properly in removal proceedings, and is properly removable from the U.S. as charged in the NTA. In all similar cases, the respondents admit removability, because otherwise, they would not be able to apply for cancellation of removal.

So in summary, Andrade Jaso is inconsistent with all of the AG’s precedent decisions under this administration, and with binding regulations. And yet, a three Board Member panel had no reservations (there wasn’t any dissent) in issuing this decision. Why? Because it prevents the only group of people who actually want to be in proceedings from having the chance to apply for legal status.

The good news is that the decision states that an immigration judge “may” terminate proceedings, not that they must. Hopefully, judges will exercise good judgment in refusing to terminate worthy cases. However, the decision might offer an equitable resolution where one who lacks the requirements for cancellation of removal, which requires an exceptional degree of hardship to the qualifying relative, was wrongly steered into removal proceedings and would otherwise have faced certain removal.

In closing, it is wondered how the AG or BIA might respond to a situation in which an IJ dismisses proceedings upon the motion of a DHS attorney that the separation of a child from its parent with no plan as to how to reunite the family, the permanent psychological damage such separation causes to child and parent, and the subsequent need to rush the family through the system before they can adequately obtain counsel or prepare their applications, constitutes such an abuse of the asylum system as to warrant dismissal under the same regulation. Are any DHS attorneys willing to make such motion?

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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Why are the Immigration Court dockets out of control? Many, perhaps the majority, of the cases that DHS has put on the Immigration Court docket, shouldn’t be there. That’s because:

They involve individuals who have relief pending at USCIS; or
They involve long-term, law abiding undocumented residents, many with U.S. citizen or LPR family members, that in any rational system, particularly one straining to adjudicate cases of arriving asylum seekers in a timely manner, would be considered “low priority” — where removal actually is likely to be a “net negative” to the U.S. rather than serving any reasonable purpose; or
They are older asylum cases that should have been granted by the Asylum Office or should be “stip-granted” by DHS under a properly generous interpretation of asylum laws (disregarding lawless decisions like Matter of A-B-); or
They are potential “Non-Lawful-Permanent-Resident Cancellation Cases,” subject to an unrealistic numerical limit, that under a properly working system, could initially be vetted by Asylum Officers or other USCIS Adjudicators and only referred to the Immigration Court, in small manageable batches, if they could not potentially be granted by DHS.

With proper docket management, professional discipline, professional management, and the use of liberal amounts of “prosecutorial discretion” by the DHS, like every other prosecutorial office in he U.S save the “Trump DHS,” the Immigration Courts’ overwhelming backlog could be cut to manageable levels in relatively short order.

That, in turn, would allow the Immigration Courts to handle incoming asylum cases in a fair and timely manner without degrading Due Process or otherwise stepping on anyone’s rights. In other words, the idea that DHS should be empowered to force the Immigration Courts “to proceed to a final decision in every case filed” is killing the Immigration Courts and ultimately will tank the Article III Federal Courts if allowed to proceed without some “adult supervision.”

Additionally, the Immigration Courts need more 8ibetter qualified judges (with proven immigration expertise, not almost exclusively from the DHS side), much better training, improved staffing including a Judicial Law Clerk for each Immigration Judge, decisional and docket management independence, emphasis on written rather than oral decisions in most appealed cases, and, most of all, freedom from the pernicious political meddling from the DOJ and the White House that has brought this system into disrepute within the larger legal community and to the brink of collapse.

The “rule” established by the DOJ now appears to be that:

If a private party requests a continuance, closing, termination, or other reasonable postponement of removal proceedings, that request ordinarily should be denied in favor of proceeding to a final order whether it makes any sense or not; but
If “EOIR’s Partner” DHS requests that a case be taken off the docket for any reason, that should be viewed sympathetically even if it deprives a respondent in proceedings of substantial rights.

As long as so-called “courts” are told to consider themselves “in partnership with Government prosecutors,” to the derogation of private parties and individual rights, both statutory rights and Constitutional rights of individuals will be largely meaningless in the immigration context. And, if we let them become meaningless in immigration, soon they will be meaningless almost everywhere the Government chooses to overstep its legal and Constitutional authority. That’s the difference between an authoritarian state and a functioning democratic republic. Make no mistake about it, thanks to a great degree to what is happening in U.S. Immigration “Courts,” that difference is diminishing, for all of us, every day.

PWS

06-10-19

HON. JEFFREY S. CHASE: The Latest On The “Pereira Controversy”

https://www.jeffreyschase.com/blog/2019/6/3/latest-pereira-developments

Jun 3 Latest Pereira Developments

I have previously discussed the implications of the Supreme Court’s 2018 decision in Pereira v. Sessions here and here. There are two aspects to the Pereira decision. The first is the narrow issue presented to the Supreme Court, concerning whether the service of a purported charging document (known as a Notice to Appear, or “NTA”) that is defective in its lack of a time and date as required by statute triggers what is known as the “stop-time rule.” That rule prevents a non-citizen from accruing additional continuous residence towards the 10 years needed to be able to apply for a relief known as Cancellation of Removal. If the time was not stopped by the defective NTA, non-citizens continue to accrue time towards the ten-year requirement, eventually allowing many to apply for that additional form of relief that would have otherwise been closed to them. The second aspect of Pereira (and the one discussed in my prior posts, which has captured the imagination of many immigration practitioners) concerns whether the particular language employed by the Supreme Court in holding that no, the defective document does not trigger the stop-time rule because by virtue of its defect, the document isn’t in fact an NTA, can be interpreted to more broadly undermine the legitimacy of every case, past and present, that was initiated by DHS with such a defective document.

In spite of high hopes regarding the second issue (which were raised by the termination of 9,000 removal cases by immigration judges in just the first two months following the Pereira decision), the tide turned with the issuance of decisions to the contrary, first by the BIA in Matter of Bermudez-Cota, and then by decisions from the U.S. Courts of Appeals for the Sixth, Ninth, and Second Circuits affirming the BIA’s ruling.

Although a recent decision of the Seventh Circuit also refused to terminate the petitioner’s proceedings, it did so in a unique way that is worth discussing. In Ortiz-Santiago v. Barr, the court disagreed with the view of its sister circuits that Pereira’s holding was limited to the narrow issue of the stop-time rule, and that the NTA’s requirements are satisfied by the two-step process of the service of a defective NTA followed by the immigration court’s mailing of a notice providing the missing information. The Seventh Circuit found that “Pereira is not a one-way, one-day train ticket,” in that its holding has broader implications than merely the stop-time rule. The court rejected as “absurd” the Government’s argument that the NTA referenced in the statute is a different document from the one referenced in the regulations. (It bears noting that the 6th Circuit adopted this argument in footnote 4 of its decision in Santos-Santos v. Barr). The 7th Cir. was also unpersuaded by the two-step compliance approach of the BIA in Bermudez-Cota (which the other three circuits deferred to). The 7th Circuit stated that Bermudez-Cota “brushed too quickly over the Supreme Court’s rationale in Pereira and tracked the dissenting opinion rather than the majority.” The court added that “Congress itself appears to have rejected the two-step approach” when it passed the legislation that created the NTA.

The Seventh Circuit then turned to the issue of what should result from a finding that an NTA did not comply with the statute. Here the decision takes an interesting turn. The court stated that the fact that the regulation states that “jurisdiction vests” upon the service of an NTA isn’t read as “jurisdiction” “in the same sense that complete diversity or the existence of a federal question is for a district court.” Instead, the court interpreted the question of “jurisdiction” in an agency regulation as what it termed a “claim-processing rule,” which the court defined as a rule “that seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” The court noted that the failure to comply with a claim-processing rule may result in termination of the case, but only if a timely objection is raised. In the absence of such timely objection, the failure to comply “may…be waived or forfeited by the opposing party.” The court turned to the question of whether the lack of such timely objection in the case before it constituted such forfeiture, or (1) whether the fact that doing so at the time would have been futile under existing circuit case law, and (2) the major legal change that the Pereira decision constituted, allowed for the late raising of such objection. The court answered this last question in the negative, concluding that the petitioner could have gleaned even pre-Pereira that a potential problem existed, as portended from the stand-alone position of the Third Circuit’s 2016 decision in Orozco-Velasquez v. Holder, which created the circuit court split that led the matter to eventually be taken up by the Supreme Court in Pereira.

Although the Ortiz-Santiago decision ultimately denied the motion for termination, it created a new road map for analyzing such claims. Most notably, it rejected the BIA’s analysis of the issue in Bermudez-Cota. It is wondered whether another circuit might be persuaded to adopt the reasoning of this decision (which I liken to a ball that looks like it might be a home run before hooking foul at the last moment) but differ on whether the issuance of the Pereira decision would form a legitimate basis for allowing the raising a late objection.

Not content with its ruling on the jurisdictional issue, the BIA returned to the narrower issue in Pereira in a May 1 precedent, Matter of Mendoza-Hernandez and Capula-Cortez, in which the Board held that the two-step rule rejected in Pereira is not only sufficient for broader jurisdictional purposes, but remarkably, is also sufficient to trigger the stop-time rule. The degree of chutzpah involved in reaching a decision directly at odds with the Supreme Court’s holding was so great that a sharply-divided Board made the case its first en banc decision in 10 years, revealing a 9 to 6 split among its permanent judges.

In the current issue of the American Bar Association’s Judges’ Journal, Richard J. Pierce, Jr., a law professor at George Washington University discusses the right of the president to remove officers within the federal government at will. (The article has been reprinted here on the website of my friend and colleague Paul Schmidt). Using the example of immigration judges, Prof. Pierce argues of the need to protect those performing an adjudicatory function from at-will removal “in order to reduce the risk that they will adjudicatory hearings in ways that reflect pro-government bias in violation of due process.” Prof. Pierce cites the present danger under a president and attorney general who have expressed strong anti-immigrant views “and have applied extraordinary pressure on IJs to deny applications for asylum.” Prof. Pierce opines that it is unrealistic to expect all immigration judges to be able to withstand such pressure. I believe that Mendoza-Hernandez is a perfect example of this. If only two of the nine Board Members in the majority ruled as they did out of fear of repercussions from the Attorney General, such pressure effectively changed the outcome of the decision. I feel strongly that this in fact happened.

The Ninth Circuit took only three weeks to reverse the Board’s decision. The circuit court ruled to the contrary that a subsequent hearing notice does not trigger the stop-time rule. The court also held that it owes no deference to the BIA’s interpretation of Supreme Court decisions; that the BIA ignored the plain text of the statute it claimed to be interpreting; and that the BIA relied on case law that could not be reconciled with the Supreme Court’s decision in Pereira. As the BIA will undoubtedly continue to apply its erroneous decision outside of the Ninth Circuit, it is hoped that the other circuits will quickly follow the Ninth Circuit’s lead. Sadly, the majority of the BIA’s judges have signaled that they will not act as neutral arbiters and afford due process. It is left to the circuit courts to provide the necessary correction.

For my recent commentary on the BIA’s Pereira interpretations and the Ninth Circuit’s rough treatment of Hernandez-Mendoza see:COURTS: As BIA Continues To Squeeze The Life Out Of Pereira, 9th Circuit Finally Pushes Back — Why The “Lost Art” Of BIA En Banc Review & Dissent Is So Essential To Due Process & Fundamental Fairness!May 28, 2019

BARR CONTINUES RESTRICTIONIST ASSAULT ON IMMIGRATION COURTS: Intends To Reverse BIA Precedents Giving “Full Faith & Credit” To State Court Sentence Modifications — Another Disingenuous Request For “Amicus Briefing!”

https://www.justice.gov/eoir/page/file/1166251/download

Cite as 27 I&N Dec. 556 (A.G. 2019) Interim Decision #3954

556
Matter of Michael Vernon THOMAS, Respondent
Matter of Joseph Lloyd THOMPSON, Respondent
Decided by Attorney General May 28, 2019
U.S. Department of Justice
Office of the Attorney General
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer these cases to me for review of its decisions. The
Board’s decisions in these matters are automatically stayed pending my
review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).
To assist me, I invite the parties to these proceedings and interested amici to
submit briefs that address whether, and under what circumstances, judicial
alteration of a criminal conviction or sentence—whether labeled “vacatur,”
“modification,” “clarification,” or some other term—should be taken into
consideration in determining the immigration consequences of the
conviction.
The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before June 28, 2019. Interested amici may submit briefs not exceeding
9,000 words on or before July 12, 2019. The parties may submit reply briefs
not exceeding 6,000 words on or before July 12, 2019. All filings shall be
accompanied by proof of service and shall be submitted electronically to
AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.

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Like Barr’s entire tenure and continued interference with Due Process and judicial independence in the Immigration Courts, it’s highly unethical.

Nobody outside the White Nationalist restrictionist enclave would have any interest in revisiting the BIA’s reasonable rulings, going back more than a decade and one-half, recognizing sentence modifications entered by judges in criminal cases, mostly in state courts. Matter of Song, 23 I&N Dec. 173 (BIA 2001) and Matter of Cota Vargas, 23 I&N Dec. 843 (BIA 2005).

Indeed, this action does not appear to have have been generated by any actual party participating in Immigration Court litigation or by any pending Circuit Court litigation. It has nothing to do with the current “border crisis” that has paralyzed this Administration’s immigration bureaucracy.

Rather, it appears to be part of a concerted politically-based attack on migrants and the independence of the Immigration Court system orchestrated by restrictionist groups outside of government who use unscrupulous and willing senior officials like Barr, and Sessions before him, as operatives.

After ignoring all of the compelling arguments favoring the current precedents, Barr will basically “adopt” or “adapt” Judge Roger Pauley’s dissenting opinion in Matter of Cota. The decision likely has already been drafted along the lines of the restrictionist groups’ agenda for stripping migrants of the few rights they still retain in what was already a bogus “court” system where the law had intentionally been skewed against them and in favor of DHS for political reasons.

The only question is whether the Article III Courts will continue to put up with Barr’s “charade of justice at Justice.” We’ll see. But, at some point, the damage to our system being inflicted by dishonest and unethical officials like Barr might become irreparable.

PWS

05-30-19

IN MEMORIAM: BART STARR (1934 – 2019): Packer All-Time Great Was A Winner On & Off The Field — Fierce Competitor, One Of The Most “Cerebral” NFL QBs Ever, Remembered As Respectful, Humble, Generous!

https://www.packersnews.com/story/sports/nfl/packers/2019/05/26/bart-starr-green-bay-packers-quarterback-dies-obit/513133002/

Pete Dougherty reports for the Green Bay Press Gazette:

The quarterback who guided the Green Bay Packers to five NFL championships and was as popular as any figure in franchise history has died.

Bart Starr, who served as the extension of coach Vince Lombardi on the field during the Packers’ glory days of the 1960s, has died, his family said Sunday in a statement. He was 85.

Starr’s health had been in decline since he suffered a mini-stroke while giving a speech in Madison in 2012. After suffering another stroke, a heart attack and multiple seizures in 2014, he underwent stem cell treatments in 2015 and ’16 and rebounded to some degree.

“We are saddened to note the passing of our husband, father, grandfather, and friend, Bart Starr,” the family statement said. “He battled with courage and determination to transcend the serious stroke he suffered in September 2014, but his most recent illness was too much to overcome.

“While he may always be best known for his success as the Packers quarterback for 16 years, his true legacy will always be the respectful manner in which he treated every person he met, his humble demeanor, and his generous spirit.

Next Slide

“Our family wishes to thank the thousands of friends and fans who have enriched his life – and therefore our lives – for so many decades and especially during the past five years. Each letter, text, phone call, and personal visit inspired him and filled him with joy.

“His love for all of humanity is well known, and his affection toward the residents of Alabama and of Wisconsin filled him with gratitude. He had hoped to make one last trip to Green Bay to watch the Packers this fall, but he shall forever be there in spirit.”

Starr’s place in Packers lore is cemented by his role in Lombardi’s 1960s Packers dynasty, which remains the most successful seven-year stretch in NFL history with five titles, including wins in the first two Super Bowls.

“The Packers Family was saddened today to learn of the passing of Bart Starr,” Packers President/CEO Mark Murphy said in a statement. “A champion on and off the field, Bart epitomized class and was beloved by generations of Packers fans. A clutch player who led his team to five NFL titles, Bart could still fill Lambeau Field with electricity decades later during his many visits. Our thoughts and prayers go out to Cherry and the entire Starr family.”

RELATED: The Ice Bowl and beyond: Packers legend Bart Starr’s six greatest games

RELATED: Bart Starr legend grew from humble beginnings

He is most famous for leading the legendary drive and scoring the touchdown on the iconic play in Packers history, the quarterback sneak against Dallas that won the Ice Bowl in 1967.

The Ice Bowl drive and sneak were the culmination of the Lombardi-era Packers’ will to win, toughness and discipline that Starr embodied as quarterback of those teams.

Former Green Bay Packers quarterback Bart Starr donated his Super Bowl II championship ring and other items to the Hall of Fame during, what his family says, was his last trip to Green Bay on Oct. 23, 2017. Sarah Kloepping/USA TODAY NETWORK-Wisconsin

“That’s the sign of a champion,” Cowboys tackle Ralph Neely told the Green Bay Press-Gazette after the Ice Bowl. “They needed a score, and Starr got it for them.”

Starr’s jersey No. 15 is one of only six numbers retired in Packers history.

. . . .

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

Go to the link for the complete article with more pictures and videos of Starr’s fabled career.

Growing up in Milwaukee, I was fortunate to see Starr and the Lombardi-era Pack play “live” on several occasions. In those days, unlike now, the Packers played three “home” games at Milwaukee County Stadium. While we didn’t have season tickets, my parents had a few friends who did, so occasionally two tickets would come our way.

While Starr’s most famous play was the successful quarterback sneak against the Cowboys in the “Ice Bowl,” he was also noted for crossing up defenses on third down plays. I remember sitting with my Dad, feet freezing, at County Stadium for a late season game between the Pack and the Cleveland Browns, who at that time had “all world” running back Jim Brown and a stout defense.

The Pack had a third and one in their own territory in tight game. In those days, most offenses were focused on running, rather than the wide-open pass-oriented game of today. That was particularly true of the Pack under Lombardi. “Grind it out” and punish your opponents with tough physical play was more or less the “Lombardi culture.” With future Hall of Fame running backs Jimmy Taylor and Paul Hornung, and one of the premier offensive lines ever, everyone in the stadium, including the Browns, expected a run up the middle or maybe one of the famous “Packer Sweeps” with “pulling guards” leading the way for Taylor or Hornung.

Starr changed the play at the line. On the a snap, he took three streps back and hit his receiver (probably Boyd Dowler, but perhaps Max McGee) with a strike resulting in an untouched trip down the field into the end zone. Classic Starr! It changed the momentum of the game, allowing the Pack eventually to prevail.

I think Starr’s relationship with the legendary Vince Lombardi was the key to Packer success. While Lombardi was undoubtedly a coaching “genius,” he also was a “larger than life figure” who “sucked the air” out of any room he was in. Additionally, he was known for being rather frank and brutal in assessing failures to perform up to his high expectations.

I doubt that most of today’s “top tier” quarterbacks could have existed in Lombardi’s system. And, without somebody like Starr, who understood the “big picture” of what Lombardi was doing, and always delivered under pressure, I don’t think Lombardi and the Pack could have reached the heights of football dominance in the 1960’s as they did.

R.I.P Bart! Thanks for the memories, the excitement, and the inspiration of a life well-lived.

PWS

05-26-19

I also highly recommend ESPN’s Ian O’Connor’s moving tribute to Starr “The Toughest Football Player Who Ever Lived” that shows how Starr’s greatness went far beyond statistics and on field successes. http://www.espn.com/nfl/story/_/id/26826288/bart-starr-was-toughest-football-player-ever-lived

PWS

05-26-19

FOURTH CIRCUIT EXPOSES EOIR’S CONTINUING BIAS AGAINST REFUGEES FROM THE NORTHERN TRIANGLE — “Here, as in [two other published cases], the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.” – Orellana v. Barr — Yet 4th Cir.’s “Permissive Approach” To Malfeasance At The BIA Helps Enable This Very Misconduct To Continue! — When Will Worthy, Yet Vulnerable Asylum Applicants Finally Get Justice From Our Courts?

ORELLANA-4TH-DV181513.P

Orellana v. Barr, 4th Cir., 04-23-19, published

PANEL: MOTZ, KING, and WYNN, Circuit Judges

OPINION BY: JUDGE MOTZ

KEY QUOTE:

In reviewing such decisions, we treat factual findings “as conclusive unless the evidence was such that any reasonable adjudicator would have been compelled to a contrary view,” and we uphold the agency’s determinations “unless they are manifestly contrary to the law and an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). These standards demand deference, but they do not render our review toothless. The agency “abuse[s] its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Id.; accord Zavaleta-Policiano, 873 F.3d at 247.

Orellana contends that the IJ and the BIA did precisely this in their reasoning as to whether the Salvadoran government was willing and able to protect her.3 We must agree. Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented. Here, as in Tassi and Zavaleta-Policiano, the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.

First, agency adjudicators repeatedly failed to offer “specific, cogent reason[s]” for disregarding the concededly credible, significant, and unrebutted evidence that Orellana provided. Tassi, 660 F.3d at 722; accord Ai Hua Chen, 742 F.3d at 179. For example,

3 Orellana also contends that the BIA failed to conduct separate inquiries into the Salvadoran government’s “willingness” to protect her and its “ability” to do so. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (finding legal error where the BIA considered a government’s efforts at offering protection without “examin[ing] the efficacy of those efforts”). After careful review of the record, we must reject this contention. The BIA applied the proper legal framework. It treated “willingness” and “ability” as distinct legal concepts, and it sufficiently addressed each in its order.

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Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.

The IJ declined to do so on the theory that it was “unclear and confusing as to why exactly she was not able to get assistance from either the police or the court during these times.” But the record offers no evidence to support the view that the Salvadoran government officials had good reason for denying Orellana all assistance. Cf. Tassi, 660 F.3d at 720 (requiring agency to “offer a specific, cogent reason for rejecting evidence” as not credible). Rather, Orellana offered the only evidence of their possible motive aside from the family court officials’ claim that they were “too busy” — namely, uncontroverted expert evidence that “[d]iscriminatory gender biases are prevalent among [Salvadoran] government authorities responsible for providing legal protection to women.”

Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police “many times” during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted. To “arbitrarily ignore[]” this “unrebutted, legally significant evidence” and focus only on the isolated instances where police did respond constitutes an abuse of discretion.Zavaleta-Policiano, 873 F.3d at 248 (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)); accord Hernandez-Avalos, 784 F.3d at 951 (“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual findings.”).

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The agency’s analysis also “distorted” the record evidence concerning the instances of government involvement. Tassi, 660 F.3d at 719. For example, although the IJ accepted as credible Orellana’s testimony that Salvadoran family court employees rebuffed her third request for a protective order because “they were too busy” and suggested that she try again another day, the IJ inexplicably concluded from this testimony that Salvadoran family court employees “offered continued assistance” to Orellana. The IJ similarly distorted the record in finding that, in 2006, “the [family] court in El Salvador acted on [Orellana’s] behalf” when it took no action against Garcia, and in finding that, in 2009, a different Salvadoran court “attempted to assist” Orellana bydenying her the protective order that she requested.

Despite these errors, the Government asserts three reasons why the BIA’s order assertedly finds substantial evidentiary support in the record. None are persuasive.

First, the Government argues that Orellana’s own testimony established that she had “access to legal remedies” in El Salvador. But access to a nominal or ineffectual remedy does not constitute “meaningful recourse,” for the foreign government must be both willing and able to offer an applicant protection. Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). As the Second Circuit has explained, when an applicant offers unrebutted evidence that “despite repeated reports of violence to the police, no significant action was taken on [her] behalf,” she has provided “ample ground” to conclude “that the BIA was not supported by substantial evidence in its finding that [she] did not show that the government was unwilling to protect [her] from private persecution.” Aliyev v.

Mukasey, 549 F.3d 111, 119 (2d Cir. 2008). Evidence of empty or token “assistance” 11

cannot serve as the basis of a finding that a foreign government is willing and able to protect an asylum seeker.

Second, the Government contends that Orellana cannot show that the Salvadoran government is unable or unwilling to protect her because she did not report her abuse until 1999 and later abandoned the legal process. But Orellana’s initial endurance of Garcia’s abuse surely does not prove the availability of government protection during the decade-long period that followed, during which time she did seek the assistance of the Salvadoran government without success. As to Orellana’s asserted abandonment of the Salvadoran legal process, we agree with the Government that an applicant who relinquishes a protective process without good reason will generally be unable to prove her government’s unwillingness or inability to protect her. But there is no requirement that an applicant persist in seeking government assistance when doing so (1) “would have been futile” or (2) “have subjected [her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, Orellana offered undisputed evidence of both.

Finally, the Government suggests that even if the Salvadoran government had previously been unwilling or unable to help Orellana, country conditions had changed by 2009 such that she could receive meaningful protection. Because the agency never asserted this as a justification for its order, principles of administrative law bar us from

12

dismissing the petition on this basis. See SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943).4

We have often explained that an applicant for asylum is “entitled to know” that agency adjudicators “reviewed all [her] evidence, understood it, and had a cogent, articulable basis for its determination that [her] evidence was insufficient.” Rodriguez- Arias v. Whitaker, 915 F.3d 968, 975 (4th Cir. 2019); accord, e.g., Baharon, 588 F.3d at 233 (“Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present . . . will be fairly considered and weighed by those who decide their fate.”). That did not happen here.

We therefore vacate the order denying Orellana asylum.5 On remand, the agency must consider the relevant, credible record evidence and articulate the basis for its decision to grant or deny relief.

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

This case is a great illustration of my speech to FBA Austin about the biased, sloppy, anti-asylum decision-making that infects EOIR asylum decisions for the Northern Triangle, particularly for women who suffered persecution in the form of domestic violence. See “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“
The respondent’s evidence of “unwilling or unable to protect” was compelling, comprehensive, and uncontested. In cases such as this, where past harm rising to the level of persecution on account of a protected ground has already occurred, the “real courts” should establish and enforce a “rebuttable presumption” that the government is unwilling or unable to protect and shift the burden of proving otherwise where it belongs — to the DHS. See https://immigrationcourtside.com/2019/04/25/law-you-can-use-as-6th-cir-veers-off-course-to-deny-asylum-to-refugee-who-suffered-grotesque-past-persecution-hon-jeffrey-chase-has-a-better-idea-for-an-approach-to-unwilling-or-unable-to/ LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!
This is how “malicious incompetence” builds backlog. This case has been pending since March 2011, more than eight years. It has been before an Immigration Judge twice, the BIA three times, and the Fourth Circuit twice. Yet, after eight years, three courts, seven judicial decisions, and perhaps as many as 17 individual judges involved, nobody has yet gotten it right! This is a straightforward “no brainer” asylum grant!
However, the Fourth Circuit, rather than putting an end to this continuing judicial farce, remands to the BIA who undoubtedly will remand to the Immigration Judge. Who knows how many more years, hearings, and incorrect decisions will go by before this respondent actually gets the justice to which she is entitled?
Or maybe she won’t get justice at all. Who knows what the next batch of judges will do? And, even if the respondent “wins,” is getting asylum approximately a decade after it should have been granted really “justice?” This respondent actually could and should be a U.S. citizen by now!
To make things worse, although the DHS originally agreed that most of the facts, the “particular social group,” as well as “nexus” were “uncontested,” now, after eight years of litigating on that basis, likely spurred by Session’s White Nationalist unethical attack on the system in Matter of A-B-, the DHS apparently intends to “contest” the previously stipulated particular social group.
Rather than putting an end to this nonsense and sanctioning the Government lawyers involved for unethical conduct and delay, the Fourth Circuit merely “notes in passing,” thereby inviting further delay and abuse of the asylum system by the DHS and EOIR.
This well-documented, clearly meritorious case should have been granted by the Immigration Judge, in a short hearing, back in March 2013, and the DHS should have (and probably would have, had the Immigration Judge acted properly) waived appeal.
Indeed, in a functional system, there would be a mechanism for trained Asylum Officers to grant these cases expeditiously without even sending them to Immigration Court.
The bias, incompetence, and mismanagement of the Immigration Court system, and the unwarranted tolerance by the Article III Courts, even those who see what is really happening, is what has sent the system out of control
Don’t let the Administration, Congress, the courts, or anyone else blame the victims of this governmental and judicial misbehavior — the asylum seekers and their lawyers, who are intentionally being dehumanized, demeaned, and denied justice in a system clearly designed to screw asylum seekers, particularly women fleeing persecution from the Northern Triangle!
We don’t need a change in asylum law. We need better judges and better administration of the Asylum Office, as well as some professionalism, sanity, and discipline from ICE and CBP about what cases they choose to place in an already overtaxed system.
That’s why it’s critical for advocates not to let the Article IIIs “off the hook” when they improperly “defer” to a bogus system that currently does not merit any deference, rather than exposing the misfeasance in this system and forcing it to finally comply with Constitutional Due Process of law.
While the statute says Article III Courts should “defer” to fact findings below, such deference should be “one and done.” In cases such as this, where EOIR has already gotten it wrong (here five times at two levels), Due Process should require “enhanced scrutiny” by the Article IIIs.
It’s welcome to get a correct published analysis from an Article III.
But, as noted by the Fourth Circuit, this is at least the third time the BIA has ignored the Fourth Circuit’s published precedents by “disregarding and distorting” material elements of a respondent’s claim. There is a name for such conduct: fraud.
Yet, the Fourth Circuit seems unwilling to confront either the BIA or their apologists at the Office of Immigration Litigation (“OIL”) for their unethical, incompetent, frivolous, and frankly, contemptuous behavior.
That’s why it’s absolutely critical for the advocacy community (the “New Due Process Army”) to keep pushing cases like this into the Article III Courts and forcing them to confront their own unduly permissive attitude toward the BIA which is helping to destroy our system of justice.
And, if the Article IIIs don’t get some backbone and creativity and start pushing back against the corrupt mess at EOIR, they will soon find the gross backlogs caused by “Aimless Docket Reshuffling” and “malicious incompetence” will be transferring to their dockets from EOIR.
Due Process Forever; complicity in the face of “malicious incompetence,” never!

PWS

05-25-19

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS “NEW DUE PROCESS ARMY”

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? Would a real court system put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.

My friends have given you the law. Now, I’m going to give you the “facts.” Let’s go over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.

I, of course, hold harmless the FBA, the “Burmanator,” my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call.”

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic “dumbed down” regime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”

Yes, I know, many “real” Federal Judges don’t like immigraton cases. “Tough noogies” — that’s their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law.

And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents. In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.”

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 3) make the historical record; and 4) fight “Dred Scottification.”

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.” If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on “Courtside.”

Folks, the antidote to “malicious incompetence” is “righteous competence.” The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”

The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!

(05-17-19)

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PWS

05-20-19

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