"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”
Michigan Stadium, America’s largest, holds 107,601. It would take approximately 20 Michigan Stadiums to hold all the 2,000,000 + folks waiting for hearings in Garland’s dysfunctional and backlogged Immigration Courts! And, that doesn’t include their families, communities, employers, co-workers and others affected by their fates! If Garland were the managing partner of a law firm or the CEO of a business, he would be “long gone.” Why aren’t competence and accountability “minimum requirements” for America’s chief lawyer? Michigan Stadium Photo by Andrew Horne, Creative Commons License
Even at this accelerated completion rate, on an annualized basis, I calculate thatEOIR will still be building backlog at a rate of nearly 300,000 annually, based on 800,000 new receipts from DHS.
At approximately 700 completions/year/judge (EOIR’s figure), EOIR would need approximately 400 additional, fully trained, fully productive IJs on the bench just to “break even” and stop creating more backlog.
Nearly 800,000 asylum cases are sitting in the backlog, many ready to try and pending for years. With a better BIA and better trained IJs who actually applied Cardoza-Fonseca, Mogharrabi, and the regulatory presumptions of well-founded fear properly (instead of being “programmed to deny”) the vast majority of these old asylum cases could be prioritized and granted in short hearings.
Even with today’s broken, biased, and unconstitutionally inconsistent Immigration Courts, migrants prevail against deportation in approximately 60% of cases! This suggests that the majority of the Immigration Court’s cases could be prioritized and resolved in the migrant’s favor without lengthy hearings IF the system had a better BIA, better IJs, better training, better practices, and a better working relationship with the private bar and DHS.
Far too few bonds are being granted, and insufficient attention is being paid to inconsistencies in the bond process.
Only an infinitesimally small percentage, .56%, of new cases filed by ICE involve allegations of criminal conduct. This suggests continuing problems with the way ICE allocates enforcement resources and chooses to use Immigration Court time.
Earlier this year, I had predicted that Garland would top the 2 million backlog mark by the end of August 2022.https://wp.me/p8eeJm-7dT
I was off by 3 months, as it actually took him until the end of November 2022 to achieve this negative landmark.
Nevertheless, some things are clear: This system is “beyond FUBAR!” It needs professional leadership, a new appellate board, better judges, better training, better utilization of the private bar, smarter, more creative and innovative practices, and authority to “rein in” in out of control ICE Enforcement. All the same things experts said were needed back at the time of Biden’s election! Ignoring expert advice has resulted in just the continuing, mushrooming disaster at EOIR and in our legal system that experts predicted!
Over two years, Garland has shown that he is not the person for the job. Nor have his political subordinates shown any aptitude for addressing the festering management, legal, and quality control problems @ EOIR!
Experts and advocates should be pushing the Administration and Dems in Congress for a change in leadership at the DOJ! Every day of failure means more backlog, more injustice, more frustration, more lives endangered, and a growing threat to American democracy — from those sworn to protect and uphold it, but aren’t getting the job done!
“The IJ granted Omorodion’s application for deferral of removal under the CAT and, after an initial remand by the BIA, reaffirmed that decision. In July 2018 the BIA vacated the IJ’s grant of CAT relief and ordered Omorodion removed, concluding that Omorodion did not show that she would suffer torture or that public officials would acquiesce in her torture. … First, Omorodion argues that the BIA mischaracterized and ignored key evidence. We agree. … The BIA also erred by failing to apply the clear error standard in its review of the IJ’s “predictive finding that [Omorodion] would suffer torture by or with the acquiescence of the Nigerian government.” … The BIA erred as a matter of law when it overlooked such evidence and rejected the IJ’s predictive finding. To summarize, we grant the petition and remand because the BIA overlooked material components of the record and misconstrued others. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir. 2009). Should the BIA vacate the IJ’s grant of CAT relief on remand, it should explain where it identifies clear error in the IJ’s factfinding based on the totality of the record. If any vacatur is not due to clear error, the BIA must otherwise “provide sufficient explanation to permit proper appellate review” of its decision. Hui Lin Huang, 3 677 F.3d at 137. For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”
“We remand for the agency to conduct the required factfinding and analysis regarding the reasonableness of Perez Nagahama’s delay in filing her asylum claim following her changed circumstances. An asylum applicant must file an asylum “application . . . within 1 year after the date of . . . arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). There is an exception for “changed circumstances which materially affect the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). Where there is such a change, the applicant must file an application “within a reasonable period given those ‘changed circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). The IJ concluded and the BIA assumed that Perez Nagahama’s circumstances changed materially when she began living as openly gay in April 2015. What is a reasonable period for filing after a changed circumstance is a fact-specific inquiry: IJs should make specific “findings of fact with respect to the particular circumstances involved in the delay of the respondents’ applications” to determine the reasonableness of the delay. Matter of T-M-H- & S-W-C-, 25 I. & N. Dec. 193, 195–96 (B.I.A. 2010). … Perez Nagahama has raised a reviewable question of law that the agency failed to apply the proper standard because it did not consider her specific circumstances before concluding that her delay was unreasonable. … The agency did not conduct the required factfinding and analysis. … Here, the IJ did not make findings of facts regarding the reasonableness of the delay in light of the attendant circumstances. The BIA should have remanded to the IJ to consider whether the delay was reasonable. … Instead, the BIA made its own factual determinations that Perez Nagahama beginning to live as openly gay did not make her delay reasonable and that the other facts she pointed to were not related to this underlying changed circumstance. Compounding this issue, the BIA gave no reasoning for its conclusion that the relevant circumstance made her delay unreasonable.”
[Hats off to Genet Getachew!]
**********************
Clearly, the BIA’s performance in this and other recent CA remands is far below even the “good enough for government work” mantra that prevails at Garland’s dysfunctional EOIR! Why does Garland think “NOT good enough for government work” is “goodenough for due process for ‘persons’ who happen to be foreign nationals” with the their lives at stake in his “smashed to smithereens” piece of our “justice” system?
The only way Garland gets to where his EOIR is today is by “Dred Scottification:” That is, intentionally treating “persons” (“humans”) in his Immigration Courts as “non –persons” under the Due Process Clause of our Constitution. If that sounds like a “Stephen Miller wet dream”🤮 (grotesque as that image undoubtedly is), it’s because that’s exactly what it is! How does a Dem Administration get away with this affront to due process, equal protection, and racial justice in America?
Kind of makes me wonder what they taught at Harvard Law (Garland’s alma mater) and other so-called “elite” law schools. I daresay that virtually all law students I have encountered in teaching immigration and refugee law for a number of years at Georgetown Law would have done better than the BIA had these cases been on my final exams.
The BIA’s inability to fairly and competently apply basic legal standards, honestly and professionally evaluate evidence of record, give asylum applicants the “benefit of the doubt” to which they are entitled under international standards, provide positive practical expert guidance on granting relief, eliminate “asylum free zones,” promote uniform outcomes, and develop and enforce “best judicial practices” is a major factor in the incredible two million case backlog that Garland has built in Immigration Court! His failure to take corrective action by replacing the BIA with competent, expert, unbiased appellate judges is a major breach of both ethical standards and his oath of office! How does he get away with it?
Thousands of asylum applicants at our border are being illegally returned to danger! Individuals with valid claims to be in the United States are routinely being denied relief for specious reasons and clear misapplications of basic legal standards in his “courts” —powerful indicators of systemic bias that should have been forcefully addressed by Garland on “day one” of his tenure at EOIR, as experts recommended.
Garland’s victims’ lives are irrevocably ruined or even ended! Misery is inflicted on their family, loved ones, and American communities! Dedicated lawyers working overtime to save lives are mistreated by Garland’s courts and traumatized by sharing the horrible consequences to their clients of systemic inferior judging! America is denied legal immigrants we need!
Our Federal justice system is overwhelmed with wasteful and never-ending litigation of immigration cases that should have been timely granted in the first instance and bad policies that never should have seen the light of day. In this respect, note that the IJ actually got it right in Omorodion! Then, in attempting to accommodate DHS and achieve an illegal removal, the BIA completely botched it on appeal! Even where justice prevails at the “retail” level, the BIA screws it up!
Yet Garland just shows up for work and draws his paycheck as if this were the way “justice” is supposed to work in America and fixing it is “below his pay level!” Gimmie a break!
Meanwhile, back at the ranch, many congrats and much appreciation to NDPA stalwarts Tom Moseley and Genet Getachew!
I am particularly honored to recognize the litigation greatness of my long-time friend, former INS colleague, and NDPA litigation icon 👍🏼🗽 Tom Moseley. He honed his complex litigation skills as an INS Special Assistant U.S. Attorney for the Southern District of NY during my tenure as Deputy General Counsel and Acting General Counsel at the “Legacy INS.”
Since leaving INS decades ago, Tom has been a tower of “practical impact litigation” and “Life-Saving 101” in New Jersey and beyond. Thanks for all you do, my friend!
I would like to discuss a concept related to asylum, involving protection under Article 3 of the U.N. Convention Against Torture (commonly referred to as “CAT” for short). Although lacking the benefits afforded to those granted asylum or admitted as refugees, the importance of CAT as a protection from deportation has increased in recent years due to the complex nature of current asylum claims, which require greater effort to interpret causation than claims that were more commonly decided decades ago.
Whereas asylum requires a connection between the persecution and the applicant’s race, religion, nationality, membership in a particular social group, or political opinion, CAT protects those who are at risk of torture for any (or no) reason. CAT therefore can (and has) saved lives where the person at risk could not demonstrate to the adjudicator’s satisfaction a sufficient connection to one of the five mandatory asylum grounds.
While not requiring specific causation, CAT does require that the torture be “by, or at the instigation of, or with the consent or acquiescence of, a public official…”1 When (as is often the case) the torturers are a gang or drug cartel, what is required of an applicant to establish government acquiescence?
According to federal regulations, “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”2 Thus, the regulations make it clear that acquiescence is a two-step test for (1) awareness, and (2) breach of responsibility to intervene.
Back in 2000, the BIA addressed the meaning of “acquiescence” in a precedent decision, and managed to get it very wrong. In its en banc decision in Matter of S-V- , the majority defined “government acquiescence” as a government’s willful acceptance of the torturous activity.3 How it managed to look at the above two-step test and come up with “willful acceptance” (which, incidentally, is only one step) is anyone’s guess.
Not surprisingly, the Board’s standard was universally panned by the circuit courts. With the recent decision of the First Circuit in H.H. v. Garland 4, nine circuits have now outright rejected the BIA’s take as overly restrictive, holding that the proper test is satisfied where the government in question remained “willfully blind” to the commission of torture. The remaining two circuits, while not directly overruling the Board’s take, have nevertheless applied the “willful blindness” standard. No circuit has deferred to the BIA’s interpretation.
However, until just recently, only one circuit – the Second – clarified that acquiescence requires a two-step test as described above. The remaining circuits were content to correct the language of the Board’s one-step standard from “willful acceptance” to one including “willful blindness” and then leave it at that.
Last year, Prof. Jon Bauer at the Univ. of Connecticut Law School wrote an excellent article that did a wonderful job of explaining the proper standard and the shortcomings of existing case law on the topic.5 I believe that Prof. Bauer’s article (available at the above link) should be required reading for Immigration Judges.
In summary, Bauer’s article flagged several flaws in the common view of acquiescence. The first is the mistaken belief that “willful blindness” is the entire test for acquiescence. Bauer points out that the circuit courts have held that the “awareness” step (step one) may be met either through a government’s willful blindness or through its actual awareness. But willful blindness is neither an absolute requirement nor a minimum standard for establishing both awareness and breach of legal duty elements; it simply expands the manner in which the awareness prong may be satisfied.
Importantly, in most cases, actual awareness can be established without the need to rely on a government’s willful blindness. As Bauer points out in a footnote, at least two circuits recognize government awareness as being satisfied where the government is “aware that torture of the sort feared by the applicant occurs.”6 In other words, awareness doesn’t require the government to have specific knowledge of a plan to torture the CAT applicant; it is enough that ts agents are aware that, e.g., MS-13 is engaging in this sort of conduct within the country to satisfy the awareness prong.
Bauer additionally emphasized that acquiescence remains a two-step test, and that “willful blindness” is relevant to only the first step. The standard for satisfying step two, the breach of duty to intervene, remains a blank slate. Neither the BIA nor the circuit courts have stated what is required to establish a likelihood that the government will breach its responsibility to intervene.
Bauer points out that the confusion concerning willful blindness has caused some adjudicators to view any action (no matter how ineffectual) by the government in question as precluding a finding of acquiescence, regarding even a minimal response as proof that the government was not being “willfully blind” to the torture. But as Bauer notes, willful blindness has nothing to do with the obligation to intervene. Once awareness is established (either through actual awareness or willful blindness), the focus turns to the separate question contained in step two of whether the duty to intervene was breached.
As to the breach prong, Bauer opined that the test applied under international law, requiring states “to exercise ‘due diligence’ to prevent, investigate, prosecute, and punish acts of torture by non-State actors,” is the correct one for adoption as the domestic standard for step two. Bauer explains how this interpretation is consistent with the CAT’s text and drafting history, as well as the legislative history of US ratification and implementation of the treaty.7
The confusion cited by Bauer as to the proper standard to be applied is exacerbated by the fact that the Board has never vacated its precedent decision in S-V- setting out the incorrect standard. And it was that failure to fix what was obviously broken that led to the First Circuit’s recent lesson on the topic in H.H. In that case, an Immigration Judge denied CAT by applying the Board’s incorrect “willfully accepting” standard. And perhaps because the case arose in the First Circuit, which at the time had yet to directly refute the Board’s approach in a published decision, the BIA affirmed the Immigration Judge’s decision applying the erroneous standard.
Fortunately, the petitioner in that case was represented on appeal to the First Circuit by SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire. Petitioner’s counsel did an excellent job of explaining the state of confusion on the topic, and of presenting the clear solution in line with Bauer’s approach. Counsel also enlisted the Round Table of Former Immigration Judges to weigh in on the topic with an amicus brief drafted for us by the law firm of Cooley LLP.8
The result was an excellent published decision deserving of our attention. First, the circuit panel found that the BIA “failed to meaningfully address H.H.’s alternative theory that MS-13 itself is a de facto state actor.” The court found that in simply labeling the argument “unpersuasive,” the Board provided an insufficient degree of analysis to facilitate appellate review. That argument remains one that practitioners should continue to raise in both the CAT and asylum contexts.9 And practitioners may now wish to cite to the language in H.H., which is the first published decision to demand a detailed explanation from adjudicators as to why they find such argument unconvincing.10
In addressing Matter of S-V-, the court joined the list of circuits rejecting the Board’s standard. Specifically, the court found the term “willful acceptance” to clash with Congress’s clear intent for awareness to be satisfied through both actual knowledge and willful blindness. As the court pointed out, willful acceptance “necessarily includes knowledge of the matter one is ‘accepting,’ and excludes the concept of willful blindness.”
Finding that the BIA applied an improper standard of review by treating the acquiescence issue as clearly factual, when the inquiry regarding “‘whether the government’s role renders the harm ‘by or at the instigation of or with the consent or acquiescence of a public official,”’ is legal in nature and is subject to de novo review,” the court remanded for the Board to consider under a de novo review standard “the question of acquiescence, understanding that a showing of willful blindness suffices to demonstrate an “awareness” of torture under the CAT.”
However, the court did not stop there. It continued on to the question of the breach of obligation, observing that the regulations set out a two-step inquiry, yet noting that “most of the courts that have adopted the willful blindness standard have not consistently distinguished between the ‘awareness’ and ‘breach of duty’ steps.”
On remand, the court left it to the Board to address the proper standard for the breach requirement in the first instance. But the court advised “that we join the Second Circuit in expressing skepticism that any record evidence of efforts taken by the foreign government to prevent torture, no matter how minimal, will necessarily be sufficient to preclude the agency from finding that a breach of the duty to intervene is likely to occur….Rather, on remand, the agency’s determination about breach of duty, to the extent such a determination is necessary, must be made after carefully weighing all facts in the record.”11
It is puzzling why it took 22 years for the Board to be given that direction by a circuit court. And from experience, it will take the Board some time to respond in the form of a precedent decision. As many lives will be on the line in the meantime as claims are heard by Immigration Judges (and in some instances by USCIS asylum officers, under new procedures for claims arising at the border), those deciding CAT cases are respectfully urged to reference the full decision in H.H. as well as Prof. Bauer’s article, which practitioners should also file, cite, and discuss in their briefs and arguments. Litigants and judges should work together towards getting this important standard right. Lives depend on our doing so.12
Copyright 2022 Jeffrey S. Chase. All rights reserved.
Notes:
8 C.F.R. § 1208.18(a)(1).
8 C.F.R. § 1208.18(a)(7).
22 I&N Dec. 1306 (BIA 2000) (en banc). I am happy to announce that all three members of the Round Table of Former Immigration Judges who participated in that decision disagreed with the majority’s interpretation of acquiescence in separate opinions. See Concurring Opinion of Board Member Gustavo D. Villageliu; Concurring and Dissenting Opinion of BIA Chair Paul W. Schmidt, and Dissenting Opinion of Board Member Lory D. Rosenberg.
J. Bauer, “Obscured by Willful Blindness: States’ Preventive Obligations and the Meaning of Acquiescence Under the Convention Against Torture,” 52 Col. Hum. Rts. L. Rev. 738 (2021).
Id. at 749, fn. 34 (quoting Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020) (citing two earlier decisions in agreement); and additionally citing Myrie v. Att’y Gen., 855 F.3d 509, 518 (3d Cir. 2017) (similar statement).
Id. at 750.
The Round Table expresses its appreciation to attorneys Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, and Samantha Kirby of Cooley LLP for expressing our arguments so articulately in their brief on our behalf. Our brief can be read here.
For persuasive presentations of the de facto state actor argument, see Deborah E. Anker, Law of Asylum in the United States (Thomsen Reuters) at § 4:9; and Anna Welch and SangYeob Kim. “Non-State Actors ‘Under Color of Law’: Closing a Gap in Protection Under the Convention Against Torture,” 35 Harvard Hum. Rts. J. 117 (2022).
The Second Circuit case cited to was De La Rosa v. Holder, 598 F.3d 103, 110-111 (2d Cir. 2010) (holding that the preventative measures of some government actors does not foreclose the possibility of government acquiescence).
My sincere thanks to Jon Bauer and SangYeob Kim, who provided valuable input in reviewing this article.
NOVEMBER 17, 2022
Republished by permission.
**************************
I’m proud to say that, as kindly noted by “Sir Jeffrey” in FN 3, Round Table ⚔️🛡 members, Judge Gustavo D. Villageliu, Judge Lory D. Rosenberg, and I, each filed separate opinions distancing ourselves from various aspects of our majority colleagues’ specious, and eventually proved to be wrong, views in Matter of S-V-, 22 I & N Dec. 1306 (BIA 2000) (en banc). My BIA colleagues Judge John Guendelsberger and Judge Anthony C. Moscato also joined my separate opinion, in addition to Judges Villageliu and Rosenberg.
As a hint to what’s wrong with this politically-biased “charade of a court,” operating within a prosecutorial agency, I note that all of us except Judge Moscato were ultimately “exiled” from the BIA by John Ashcroft. Our “offense” was doing our jobs by standing up in dissenting opinions for correct interpretations of law and the legal and constitutional rights of migrants in the context of a “go along to get along” BIA majority who too often chose job security over justice for the individuals coming before us.
That a number of our dissents, particularly Judge Rosenberg’s, were prescient as to what Federal Circuit Courts and the Supremes would hold, and also predicted some of their vociferous criticisms of EOIR’s poor performance under Ashcroft, are also telling of the lack of legitimacy and impartiality that Ashcroft ushered in. That has continued to plague EOIR over subsequent Administrations of both parties, including the present Administration.
In my conclusion, I highlight the majority’s unseemly haste to “get to no, with the interpretation least favorable to the respondent.”
The issue whether the respondent’s situation fits within Article 3 of the Convention Against Torture requires factual determinations about conditions in Colombia and the respondent’s own situation considered in the con- text of international legal principles. We have little United States jurisprudence to guide us in this area. Before deciding such important and potentially far-reaching issues, we should have a fully developed record and the benefit of the Immigration Judge’s informed ruling on the positions of the parties.
The respondent has established a reasonable likelihood of success on the merits so as to make it worthwhile to develop the issues at a hearing under Matter of L-O-G-, supra. His motion to reopen and remand should therefore be granted. Consequently, I respectfully dissent from the decision to deny the motion.
Over the years, the pro-government/anti-immigrant bias and “haste makes waste gimmicking” has progressively gotten worse at the BIA, culminating in the disgraceful “packing” of the BIA with notorious asylum deniers and “hard liners” during the Trump Administration.
Poll human rights experts on how many of the Trump holdover BIA judges would be considered “leading asylum experts?” How many have ever represented an asylum seeker in Immigration Court? So, why would this body have a “stranglehold” over American asylum law and be given deference by the Article IIIs to boot?
One would have expected Garland to address this obviously unacceptable situation on an urgent basis by reassigning most holdover BIA Appellate Judges and replacing them with real, expert judges from the deep private sector talent pool. EOIR needs qualified appellate jurists who will correct the many mistakes of the past, change the one-sided, overwhelmingly anti-immigrant and often misleading “precedential guidance,” enforce some consistency, eliminate disreputable “asylum free zones” pretending to be “courts,” and lead EOIR (and indeed the entire Federal Judiciary) into high-quality, best-scholarship, 21st century jurisprudence.
That means a body of scholarly, practical, transparent precedents that properly guide and advise Immigration Judges on the correct and efficient adjudication of many cases stuck in this dysfunctional system where individuals deserve to win. Instead, Garland has allowed EOIR to continue its downward spiral with sloppy work, bad decisions, and incompetent judicial administration in a system where all of these problems are potentially life threatening. Not surprisingly, this failure to fundamentally reform and improve EOIR has also led Garland to increase the backlog to a jaw-dropping almost two million cases.
Lack of judicial excellence, grotesque inconsistencies, worst practices, and administrative incompetence have also unfairly, unprofessionally, and unnecessarily increased the difficulty and already sky-high stress levels for immigration practitioners, many serving the system in a pro bono or low bono capacity. With lack of adequate immigration representation one of the festering problems undermining our entire American justice system, Garland’s poor stewardship over EOIR can (charitably) be described as totally unacceptable.
So, in answer to Jeffrey’s question as to why after 22 years legallywrong precedents still rule at EOIR and correct guidance remains elusive, I have the answer. Because, Merrick Garland has ignored the advice of experts and failed to make achievable, long-overdue reforms and critical upgrading of judicial quality at EOIR.
That’s a growing cancer on our justice system that won’t be cured without better, due-process-dedicated, leadership — at all levels!
“Dulce Zaragoza, a native and citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to the Indiana offense of criminal neglect of a dependent after locking her six-year-old son in a closet for six hours. She was sentenced to one year in jail suspended to time served plus 30 days, with the remainder of the sentence to be served on probation. After completing her sentence, she traveled abroad and presented herself for admission when she returned. The Department of Homeland Security (“DHS”) found her inadmissible based on the neglect conviction, which the agency classified as a “crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). She was placed in removal proceedings. Zaragoza fought removal on several grounds, with her arguments expanding as the proceedings progressed. Before the immigration judge, she argued that the Indiana neglect offense does not qualify as a crime involving moral turpitude. The judge disagreed and entered a removal order, and Zaragoza appealed to the Board of Immigration Appeals (“BIA” or “the Board”). In the meantime, she petitioned the state court to modify her sentence. Her purpose was to bring herself within the so-called “petty offense” exception to inadmissibility, which is available to first-time offenders sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The state court obliged and reduced her one-year sentence to 179 days. With that order in hand, Zaragoza argued before the BIA that Indiana’s neglect offense is not a crime involving moral turpitude, and regardless, the petty-offense exception applies. The BIA rejected both arguments, agreeing with the immigration judge that the Indiana offense is categorically a crime involving moral turpitude, and further holding that the sentence-modification order was not effective to establish Zaragoza’s eligibility for the petty-offense exception. For the latter conclusion, the Board relied on a recent decision of the Attorney General declaring that state-court sentence modification orders are effective for immigration purposes only if based on a legal defect in the underlying criminal proceeding. Matter of Thomas & Thompson (“Thomas”), 27 I. & N. Dec. 674, 690 (Att’y Gen. 2019). Zaragoza sought reconsideration, this time adding two more arguments: (1) the phrase “crime involving moral turpitude” is unconstitutionally vague; and (2) the Attorney General’s decision in Thomas is impermissibly retroactive as applied to her. The BIA disagreed on both counts. Zaragoza petitioned for review in this court, reprising the entire array of arguments she presented to the Board. We agree with the BIA’s resolution of all issues but one: applying Thomas in Zaragoza’s case is an impermissibly retroactive application of a new rule. We therefore remand to the BIA for further proceedings consistent with this opinion.”
***********************
Commentary from Kevin A. Gregg, ESQ:
Kevin A. Gregg
• 1st
Partner at Kurzban Kurzban Tetzeli & Pratt P.A. & Host of Immigration Review Podcast
2d • Edited •
2 days ago
Crimmigration attorneys, get your motions ready.
At least in Chicago! Matter of Thomas and Thompson CANNOT be applied retroactively in the Seventh Circuit!
Sentence modifications/clarifications/European vacations obtained pre-T&T and that comply with Matter of Cota Vargas/Song/Estrada must be recognized for immigration purposes!
Also, when will A.G. Garland weigh in on Matter of Thomas and Thompson? The time is now.
*******************
When the BIA starts not with the correct legal concept that retroactivity is disfavored in the law, but rather with “how can we best help DHS Enforcement and/or curry favor and job security from our political ‘handlers’ at DOJ,” “bad things are going to happen.” And, they do, over and over!
There are plenty of well-qualified “practical scholars” out here who understand retroactivity in the immigration context and would get these basic questions right in the first instance without bothering the Courts of Appeals or generating disorder, inconsistency, and unnecessary backlog! Why hasn’t Garland recruited them to be the “New and Improved BIA” that would actually be driven by legal expertise, practical scholarship, due process, and fundamental fairness? The latter are qualities that EOIR and DOJ claims it seeks in Immigration Judges. But, it’s not the reality that practitioners too often actually face in todays dysfunctional, inefficient, and hopelessly backlogged EOIR.
The public and those subject to substandard judging and often dehumanizing treatment by EOIR are suffering — amazingly, now more than ever! When will Garland do his job and reform his courts to conform to due process, fundamental fairness, best interpretations of law, and best practices?
The latter desirable qualities, actually necessary for any legitimate judiciary, are certainly NOT descriptive of today’s broken EOIR! Garland and his lieutenants might consider themselves “above the fray!”
But, my already over-stuffed e-mailbox is “lighting up” with EOIR horror stories from experienced, long-time practitioners who are questioning whether they can continue practicing in the hostile, lawless, “no due process,” “no customer service,” “no common sense,” “blame the victim” environment that Garland has allowed to mushroom, and sometimes even encouraged, at EOIR.
I mentioned the term “Dedicated Docket” at an Executive Session of a major NGO recently. The anger and disgust that it provoked from those actually “doing the job” of fighting for justice in Garland’s broken system was palpable!
Why is a Democratic Administration that is, despite beating expectations in the midterms, still hanging on by a thread, inflicting this type of disrespect, pain, and suffering on its own loyal supporters? How will this self-created legal, Constitutional, human rights disaster play out moving toward 2024!
“The EOIR HQ Tower” needs a complete shake-up and replacement ofthose who have demonstrated their inability to get the job done with those who can! The latter are out here. But, the worse Garland lets his system get, the harder and most costly (dollars and lives) it will be to fix it!
Too many Biden Administration Immigration officials appear to share Stephen Miller’s “upside down” view of the Statue of Liberty, in whole or in part! Why can’t they just follow the Refugee Act of 1980 and establish the robust, timely, generous legal approach to refugees and asylum seekers that best serves America?Bill Frelick Director Refugee and Migrant Rights Division Human Rights Watch
Refugees are people who flee for their lives. Escape from danger and abuse is usually chaotic, sudden, desperate. The Biden administration’s rollout of its new policy for Venezuelan refugees seems oblivious to this refugee reality and risks doing more harm than good.
. . . .
Announcing the program on Oct. 12, Homeland Security Secretary Alejandro N. Mayorkas said Venezuelans who enter irregularly “will be returned to Mexico.”
He didn’t mention — and appeared to disregard — U.S. law, which recognizes that anyone who arrives in the United States has the right to seek asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status.”
The impact of this announcement, “effective immediately,” was the summary return to Mexico without examination of their asylum claims of any Venezuelans entering the United States without authorization. Mexico has given no assurances that it will examine their refugee claims or provide asylum to those who fear return to Venezuela. In fact, the 4,050 Venezuelans expelled to Mexico since the implementation of the policy have been given visas valid for only one week and instructed to leave the country.
. . . .
With the Biden administration’s plan in effect, we might as well apply a blowtorch to Emma Lazarus’s welcoming poem at the foot of the Statue of Liberty and chisel in a new message: “Give me your well-rested, your well-to-do, your properly ticketed jet-setters yearning to breathe free.”
Read Bill’s complete op-ed act the link. Bill is one of many “practical experts” who would do a much better job than current Administration politicos in establishing and running a refugee and asylum program that would comply with the law, due process, human dignity, and America’s best interests.Why is Biden following the lead of his “clueless (and spineless) crew?”
The Refugee Act of 1980was enacted and amended to deal with these situations! Robust, realistic refugee programs outside the U.S. should encourage many refugees to apply, be screened abroad, and admitted legally.
Other refugees arriving at our border can be promptly screened for credible fear. Those who fail that test can be summarily removed in accordance with existing law.
Those who pass that test should have access to counsel and receive timely, expert adjudications, with full appeal rights, under the generous “well founded fear” (1 in 10 chance) international standard established by the Refugee Act. See, e.g., INS v. Cardoza-Fonseca (Supremes); Matter of Mogharrabi (BIA).
It’s not “rocket science!” With dynamic, experienced refugee experts running the system and “practical scholars” with expertise in refugee processing and human rights laws serving as USCIS Asylum Officers and EOIR judges at the trial and appellate levels the legal system should be flexible enough to deal with all refugee situations in an orderly manner.
Many, probably a majority, of today’s asylum seekers should be granted asylum and admitted to the U.S. in full legal status, authorized to work, and on their way to green cards and eventual citizenship. Like those admitted from abroad, they could also be made eligible for certain resettlement assistance to facilitate integration into American communities who undoubtedly will benefit from their presence.
The more robust, realistic, and timely our overseas refugee programs become, the fewer refugees who will be forced to apply for asylum at our borders. Also, real, bold, dynamic humanitarian leadership, including accepting our fair share of refugees and asylees, could persuade other countries signatory to the Geneva Refugee Convention to do likewise.
No insurmountable backlogs; no bewildered individuals wandering around the U.S. in limbo waiting for hearings that will never happen; few “no shows;” no long-term detention; no botched, biased “any reason to deny” decisions from unqualified officers and judges leading to years of litigation cluttering our legal system, no diverting Border Patrol resources from real law enforcement, no refugees huddled under bridges or sitting on street corners in Mexico!
It’s not “pie in the sky!” It’s the way our legal system could and should work with competent leadership and the very best available adjudicators and judges! It would support the proper, important role of refugees as an essential component of LEGAL IMMIGRATION, not an “exception” or “loophole” as racists and nativists like to falsely argue.
Instead of demonstrating the competence and integrity to use existing law to deal with refugee and asylum situations, the Biden Administration resorts to ad hoc political gimmicks. Essentially, the “RA80” has been repealed “administratively.” Effectively, we’re back to the “ad hoc” arbitrary approaches we used prior to ‘80 (which I worked on during the Ford Administration, and where I recollect I first heard of Bill Frelick).
I doubt that the late Senator Ted Kennedy, former Rep. Elizabeth Holtzman, and the rest of the group who helped shepherd the Refugee Act of 1980 through Congress would have thought that using Border Patrol Agents as Asylum Officers or packing the Immigration Courts and the BIA with judges prone to deny almost every asylum claim, regardless of facts or proper legal standards, was the “key to success!”
Congress specifically intended to eliminate the use of parole to deal with refugees except in extremely unusual circumstances, not present here. Biden’s latest ill-advised gimmick violates that premise. It’s totally inexcusable, as the refugee flow from Venezuela is neither new nor unpredictable. I was granting Venezuelan asylum cases before I retired in June 2016. Even then, there were legions of documentation, much of it generated by the USG, condemning the repressive regime in Venezuela and documenting the persecution of those who resisted!
A better AG would say “No” to these improper evasions of existing law. But, we have Merrick “What Me Worry” Garland! His botching of the Immigration Courts has been combined with a gross failure to stand up for equal justice for migrants (particularly those of color) across the board! America and refugees deserve better from our chief lawyer.
The Refugee Act of 1980 actually provides all the tools and flexibility the Biden Administration needs to establish order on the border and properly and fairly process refugees and asylees. Why won’t they use them?
AG Merrick Garland has “looked the other way” while the Biden Administration flaunts applicable protection laws in and outside the U.S. He also runs a dysfunctional “court system” where anti-asylum bias, worst practices, poorly qualified decision makers, and grotesque inconsistencies undermine the legal rights of asylum seekers and other refugees. Doesn’t America deserve more competence from its top lawyer? PHOTO: Wikipedia Commons
Garland’s approach to immigrant justice in his courts harkens back to “the bad old days.” Yet he remains impervious — and unaccountable! The Wasp 1882-01-06 cover Slow but sure.jpg Slow, but Sure. Cartoon depicts Lady Justice riding a tortoise, about to hang a man. George Frederick Keller Public domain
Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:
The publisher’s description of the book reads as follows:
“Each year, hundreds of thousands of migrants are moved through immigration court. With a national backlog surpassing one million cases, court hearings take years and most migrants will eventually be ordered deported. The Slow Violence of Immigration Court sheds light on the experiences of migrants from the “Northern Triangle” (Guatemala, Honduras, and El Salvador) as they navigate legal processes, deportation proceedings, immigration court, and the immigration system writ large.
Grounded in the illuminating stories of people facing deportation, the family members who support them, and the attorneys who defend them, The Slow Violence of Immigration Court invites readers to question matters of fairness and justice and the fear of living with the threat of deportation. Although the spectacle of violence created by family separation and deportation is perceived as extreme and unprecedented, these long legal proceedings are masked in the mundane and are often overlooked, ignored, and excused. In an urgent call to action, Maya Pagni Barak deftly demonstrates that deportation and family separation are not abhorrent anomalies, but are a routine, slow form of violence at the heart of the U.S. immigration system.”
KJ
**************************
The ongoing national disgrace called “EOIR” continues to mete out injustice and inane bureaucratic nonsense under a DEMOCRATIC Administration that pledged to return the rule of law and humanity to our broken Immigration Court system!
That system is “headed and controlled” by a DEMOCRATIC AG, Merrick Garland. He is a former Federal Appellate Judge who certainly knows that what passes for “justice” in his broken “court” system is nothing of the sort! Also this ongoing debacle doesn’t say much good about Garland’s “lieutenants:” Deputy AG Lisa Monaco, Associate AG Vanita Gupta, Assistant AG for Civil Rights Kristen Clarke, and Solicitor General Elizabeth Prelogar.
They have all “looked the other way,” defended, or failed to condemn this travesty undermining our entire justice system, unfolding under their collective noses at EOIR every day! At some point in the future, all these guys will be “making the rounds” of major law firms, NGOs, universities, mainstream media, and corporations — seeking to “cash in” on their DOJ “experience.” Then, folks should remember how they ACTUALLY PERFORMED (or didn’t) when they had a chance to fix “America’s worst courts” — hotbeds of racial and ethnic injustice, purveyors of bad law, and a haven for ridiculously dysfunctional procedures!
Perhaps a suitable future for these willfully blind “public servants” would be to require them to spend the balance of their careers practicing on a pro bono basis before the “star chambers” they inflicted on others! See how they like being “scheduled,” with no or inadequate notice, to do 15 or 20 asylum cases per month; appearing before too many ill-qualified “judges” who have already decided to deny regardless of the law and facts; appealing to a captive “appellate court” dominated by individuals, working for the Executive, whose main “judicial qualification” was that they denied close to 100% of the asylum claims that came before them in Immigration Court and were known for their rude and dismissive treatment of asylum applicants and their lawyers! See, e.g., “Confronting The American Star Chamber . . .,” https://wp.me/p8eeJm-4Vm.,
Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:
Maya Barak, Ph.D.
Associate Professor of Criminal Justice Studies
Maya P. Barak, PhD Assistant Professor of Criminal Justice Studies U. of Michigan -Dearborn PHOTO: UM-D Websitew
Teaching Areas: Arab American Studies, Criminology & Criminal Justice Studies, Master of Science in Criminology and Criminal Justice, Women’s & Gender Studies
Research Areas: Capital Punishment, Criminal Justice, Criminology, Gangs, Immigrants / Crimmigration, Legal Sociology, Procedural Justice, State-Corporate Crime
Biography and Education
I am an Assistant Professor of Criminology and Criminal Justice at the University of Michigan-Dearborn. I hold a PhD in Justice, Law and Criminology from American University (2016), an MA in Criminology and Criminal Justice from Eastern Michigan University (2011), and a BA in Social Anthropology and Peace and Social Justice from the University of Michigan (2009). My research brings together the areas of law, deviance, immigration, and power, utilizing interdisciplinary approaches that span the fields of criminology, law and society, and anthropology.
Gould, Jon B. and Maya Barak. 2019. Capital Defense: Inside the Lives of America’s Death Penalty Lawyers. New York: NYU Press.
Selected Articles
Barak, Maya. 2021. “Can You Hear Me Now? Attorney Perceptions of Interpretation, Technology, and Power in Immigration Court.” Journal on Migration and Human Security (https://doi.org/10.1177/23315024211034740).
Barak, Maya. 2021. “A Hollow Hope? The Empty Promise of Rights in the U.S. Immigration System”/ “¿Una promesa vacía? La ilusión de “los derechos” en el sistema migratorio de los Estados Unidos.” Las Cadenas Que Amamos: Una panorámica sobre el retroceso de Occidente a todos los niveles.
Barak, Maya. 2021. “Family Separation as State-Corporate Crime.” Journal of White Collar and Corporate Crime Vol. 2(2), 2021, pp. 109-121 (https://journals.sagepub.com/doi/10.1177/2631309X20982299). (2021 Outstanding Article or Book Chapter Award, Division of White-Collar and Corporate Crime, American Society of Criminology)
Barak, Maya. 2017. “Motherhood and Immigration Policy: How Immigration Law Shapes Central Americans’ Experience of Family.” In Forced Out and Fenced In: Immigration Tales from the Field, edited by Tanya Golash-Boza. New York: Oxford University Press.
Advocates and all Americans committed to racial justice and equal justice under law need to keep raising hell — and supporting progressive candidates — until this horrible system is replaced by a real court system, with subject matter expert judges, totally focused on delivering due process, fundamental fairness, and best judicial practices to all!
What’s happening to individuals (fellow humans, “persons” under our Constitution) and their lawyers at EOIR is NOT OK, nor is it acceptable from a DEMOCRATIC ADMINISTRATION!
Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Garland’s “vision of justice” for asylum seekers and other migrants at EOIR leaves something to be desired:
Folks with wrong-headed “take no prisoners” views on asylum law were “rewarded” with “ judgeships” at both the trial and appellate levels of EOIR under the Trump Administration. Many continue to serve and discriminate against legitimate asylum seekers under Garland. Just check out the number of “sitting IJ’s” with outrageously high “asylum denial rates” near or in excess of 90%, according to TRAC Immigration. Why haven’t these important, non-life-tenured positions been “merit re-competed” to place the “best, brightest, and most qualified” on the Immigration Bench? Albrecht Dürer, Public domain, via Wikimedia CommonsJaundiced attitudes about women (particularly those of color) and gender-based asylum claims among EOIR judges have neither been “rooted out” nor effectively addressed by Garland. As we can see, de-humanization of women and stripping them of dignity under asylum laws carries over into other legal arenas! Targeted, endemic. societal persecution of women is often intentionally minimized and mis-characterized as “random violence,” “personal disputes,” “mere jealousy,” or “not that serious” in Immigration Court! “Fictionalized accounts” of the ability of abused women to seek protection from authorities in countries where femicide and rape are rampant are sometimes employed to deny legitimate asylum claims in Garland’s broken courts. Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsWrong , “unduly restrictive,” asylum precedents and discredited methods (“Aimless Docket Reshuffling” — on steroids under Garland — is a key example) continue to harm asylum seekers in Garland’s dysfunctional “courts.” — Public Realm
on WANTED: Examples of racism and other bias in US immigration court
. . . .
The nation’s Immigration Courts have—thus far—flown under the public’s radar screen. Yet these are the places where life-or-death decisions are made, often for subjective and even racist reasons. That is why the Ohio Immigrant Alliance is collecting examples of racist, misogynistic, Islamophobic, and other biased statements and decisions made by Immigration Judges from across the country. We are working with a research team to analyze the cases and produce a report in early 2023. Here are a few examples.
Contact Lauren Hamlett (hamlett.15 AT buckeyemail.osu.edu) for more information or to share examples. This can be in the form of court documents and judges’ decisions or an interview with an immigrant or attorney. We will adhere to all privacy requirements requested by the immigrant and not publish anything without their consent.
The report, to be published in 2023, will shine a light on how racism shows up in Immigration Court using real-life examples. These findings will enrage anyone who believes the U.S. should work toward becoming a nation that guarantees “justice for all.”
See this testimony for more information, and contact Lauren to share your experiences.
*******************
I was struck by the undeniable truth — scandalously ignored by Garland, his lieutenants, and Biden Administration policy officials — contained in the January 20, 2022 statement by Lynn Tramonte, Ohio Immigrant Alliance, to the House Judiciary Committee considering the need for an independent, professionally-administered, merit-based Immigration Court.
The U.S. Is Deporting People Who Qualify for Asylum
The current U.S. immigration system is not designed to function fairly, but to fail. There are many examples of this, but today I will focus on examples from the U.S. Immigration Court.
Lynn’s full statement is available at the “this testimony” link above. I’ve made this point over and over!
Because the current system is purposely biased against asylum seekers, particularly those of color arriving at our Southern border, the “statistics” purportedly showing that few will qualify for asylum are totally bogus! Then, they are inexcusably cited by so-called “mainstream media” who haven’t done their homework! This perpetuates the “nativist myth” of the “illegitimate asylum seeker” which is then used to dehumanize refugees and deny them their legal and human rights!
Fact is, because we don’t have a legitimate, expert asylum adjudication system, we don’t really know how many qualified refugees are being illegally turned away or denied. But, it’s a safe bet that a fair, expert, professionally administered asylum system would grant legal protection to many more — probably a majority — of those who pass credible fear!
The problem is NOT, as Sessions and other nativists claimed, that too many individuals pass “credible fear.” It’s that a biased, anti-asylum, mal-administered, and constitutionally flawed system wrongfully denies far, far, far too many legitimate claims! And, Garland’s incredibly dysfunctional EOIR is at the heart of this problem!
Fixing EOIR is an essential first step in “re-legitimizing” our entire floundering justice system. But, Garland isn’t up to the job!
Asylum is an important form of legal immigration and an opportunity for America to put its best foot forward by properly, fairly, and timely screening and admitting those who can qualify for refuge and will be key contributors to our nation’s future. The babble of GOP nativists like DeSantis, Cruz, Abbott, and others about “illegals” is total BS!
It’s an ongoing national disgrace that Garland has failed to reform his Immigration Courts, eliminate bias and invidious discrimination from his judiciary, install quality, expertise, and professionalism, and insist that the Biden Administration abandon “Miller Lite,” nativist policies and mis-interpretations of the law that are diminishing our nation and endangering our future; that he also has ridiculously chosen to “go to war” with experts, NGOs, attorneys, and others seeking to change and improve his disgraceful mess at EOIR!
What’s the purpose and function of an Attorney General who operates broken and biased “courts,” defends the indefensible, and refuses to stand up for the fair application of the law to some of the most vulnerable among us?
In the meantime, submit your “real life” examples of what really happens to vulnerable humans in “America’s worst courts” to Ohio Immigrant Alliance at the above link.
The wheels are off and the wagon rotting away at EOIR! PHOTO: Creative CommonsAlfred E. Neumann has been “reborn” as Judge “Teflon” Merrick Garland! “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
The undersigned 106 legal service providers, court observers, and allied organizations located in the cities where the Dedicated Docket now operates. Together, we have observed hundreds of cases on the Dedicated Docket throughout the country. Our collective experience reveals a process rife with unfairness: lack of legal representation, expedited and arbitrary timelines, removal orders against pro se respondents (including young children), as well as courts marked by confusion and in some cases hostility.
What’s going on here!? As due process and equal justice are trashed, and lives and futures endangered, some of the best legal minds in America are forced to spend time pointing out the obvious to our “disconnected from reality” AG! What a waste!
This inexcusable disaster was totally predictable in advance! NO expert recommended this stupid, “sure to fail” “haste makes waste” approach to asylum in a faux “court system” already reeling from bias, management incompetence, hostility to due process, worst practices, far too many poorly qualified judges (some selected by Sessions and Barr for their perceived willingness to “railroad” asylum seekers), a notoriously anti-asylum appeals board, and rock bottom morale! Yet, Garland went ahead!
And NOBODY among his subordinates — not DAG Lisa Monaco, not AAG Vanita Gupta, not AAG/Civil Rights Kristen Clarke, not SG Elizabeth Prolager— at the DOJ had the guts to stand up and JUST SAY NO to his life-threatening nonsense. They all share the blame for this completely avoidable blot on our justice system and on their records (something progressives should remember when these irresponsible folks show up looking for jobs someday, as they inevitably will).What a disgrace! It didn’t have to be this way!
Why isn’t practice before the Immigration Courts and demonstrated commitment to human rights and due process a MINIMUM requirement for being the Attorney General or a top DOJ official in a Democratic Administration? No more “ivory tower” “tone deaf” appointments to key justice jobs from Democrats! End the deadly, wasteful nonsense! How many more innocents will be abused and systemically denied fundamental justice by EOIR before Biden and Harris pay attention to what’s happening “on their watch?”
And, folks, don’t forget the almost unfathomable “system costs” of having the knowledge, creativity, energy, and resources of these 106 organizations tied up in resisting and publicizing Garland’s stupidity and disdain by for equal justice and racial justice in America! They should be running EOIR, issuing great precedents on the BIA, solving problems in a practical, humane, legal manner as Immigration Judges, and redoing the broken and dysfunctional administrative system at EOIR.
The knowledge, personnel, creativity, and courage to establish a “model due process court system” are available “out here” — in spades. Instead, this avoidable human rights and racial injustice disaster is inflicted on our nation and some of the must vulnerable therein, by a tone-deaf Democratic Administration unwilling or unable to live up to their campaign promises! Disgusting! 🤮
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NPR: This has been the deadliest year ever for migrants trying to cross the U.S.-Mexico border. More than 800 migrants have died border-wide in the fiscal year that ends this week, according to internal government figures shared by a senior Border Patrol official.
NYT: For now, the changes are tiny; only 99 people since the end of May have completed what are called asylum merits interviews with an asylum officer and been fully evaluated under the new rules. Of those, 24 have been granted asylum, while most of the rest have had their cases sent back to the immigration court system for an appeal.
NYT: The decision to leave the cap at 125,000 was a contrast with the Trump administration, which severely restricted entry, but advocacy groups said migrants were still processed too slowly.
CNN: National security adviser Jake Sullivan and homeland security adviser Liz Sherwood-Randall, among other White House officials, met with the representatives of 19 countries at the White House to iron out the implementation of that declaration and appoint a special coordinator for each country, according to the senior administration official.
Intercept: The Warden of what was once one of the nation’s most notorious immigration detention facilities was arrested this week after allegedly killing one migrant and wounding another in the desert of rural West Texas.
Forbes: Compelling new research finds immigrants, including those with less than a high school degree, provide enormous fiscal benefits and a significant subsidy to U.S. taxpayers.
Reuters: In the first eight months of 2022, Royal Canadian Mounted Police intercepted 23,358 asylum-seekers crossing into the country at unofficial entry points, 13% more than all of 2017, when an influx of border-crossers at Roxham Road, near the Quebec-New York border, made international headlines.
Politico: Because cannabis remains illegal at a federal level, all employers — even those licensed at the state level — lack access to E-Verify, a government service that helps businesses verify immigration status. They also cannot use visa programs like H-2A and H-2B, which facilitate legal immigration of farmworkers in other industries… The Oregon legislature in the last 12 months set aside more than $31 million for law enforcement and advocacy groups working to combat illicit cannabis cultivation and help undocumented workers in the industry.
NPR: What is the connection between climate change, the movement of people around the globe, and the rise of xenophobic politicians? That’s the overarching question we’re hoping to answer with this reporting trip.
Law360: The U.S. Supreme Court on Monday agreed to review whether the Fifth Circuit was right to reject a Guatemalan woman’s deportation case on the grounds that she hadn’t gone through a final round of administrative appeals.
Law360: The Third Circuit has affirmed an Eastern District of Pennsylvania federal judge’s rejection of a Dominican Republic citizen’s appeal of his conviction on firearm and immigration law offenses — albeit for different reasons than the lower court.
Law360: The State Department will not have to schedule visa interviews for 12 winners of the 2022 Diversity Visa Lottery, after a D.C. federal judge found that the selectees didn’t show a high likelihood of proving that the Biden administration unlawfully delayed their interviews.
Law360: An Ohio federal judge on Wednesday said the U.S. Board of Immigration Appeals wrongly tossed a woman’s visa petition for her Ghanian husband over a previous “sham marriage,” saying whether the prior marriage was actually fake was open to dispute.
Law360: The American Civil Liberties Union on Wednesday hit the U.S. Department of Homeland Security with a Freedom of Information Act lawsuit in D.C. federal court, accusing the agency of improperly withholding access to records regarding U.S. Immigration and Customs Enforcement detainees’ access to counsel.
AP: The request comes in a lawsuit filed by migrants seeking compensation from the government after thousands of children were taken from parents in a policy maligned as inhumane by political and religious leaders around the world. Settlement talks with attorneys and the government broke down late last year.
AP: A companion complaint Wednesday to the office of civil rights at the U.S. Department of Homeland Security documents retaliation, including restrictions on access to legal representation and a falsified accusation of misconduct against an immigrant under the Prison Rape Elimination Act.
Reuters: Two U.S. government employees said they experienced retaliation after they sounded alarms about the conditions at Fort Bliss, which has been used for emergency housing since March 2021, according to the report issued by the U.S. Health and Human Services (HHS) inspector general’s office.
USCIS: The Department of Homeland Security (DHS) today announced an extension of Temporary Protected Status (TPS) for Burma for an additional 18 months, from Nov. 26, 2022, through May 25, 2024, due to extraordinary and temporary conditions in Burma that prevent individuals from safely returning.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Despite disingenuous claims otherwise, the overhyped “launch” of asylum “reform” has been a “dud” — producing little for the Administration but even less for legitimate refugees and due process advocates caught up in the mind-boggling dysfunction of the failed Mayorkas/Garland asylum system. PHOTO: NASA/Joel Kowsky Public Realm
As border deaths continue to soar, nativist GOP Governors use humans as political pawns, and conditions in refugee sending countries deteriorate, the Biden Administration’s failed human rights/racial justice bureaucracy has no answers!
By attempting to replicate, remarkably even touting, the unrealistically high denial rates produced by the previous system — too often the result of badly flawed adjudications, poorly trained officers and judges, lack of effective representation, chronic systemic anti-asylum bias, and overly restrictive, anti-asylum precedents produced by a BIA loaded with anti-asylum zealots by the Trump Administration — Mayorkas and Garland have basically guaranteed continuing human rights abuses and defective adjudication of claims.
Truth is, even during the height of the overt anti-asylum program of the Trump Administration, approximately 70% of those whose claims were “referred” by the Asylum Office were eventually granted protection in Immigration Court.
According to Human Rights First (“HRF”), an international human rights organization, in Fiscal Year 2021, 68% of asylum cases referred to immigration court by the AO were subsequently granted protection.[1] With nearly 70% of claims being granted in FY2021, this represents a clear and apparent waste of judicial resources.
And, this was with a legal system with overly restrictive precedents that clearly and improperly manipulated generous asylum laws AGAINST refugees, often hindered effective representation, and was “overseen” by many Immigration Judges who were hand-selected or retained by the Trump DOJ because they were “programmed to deny” asylum at outrageous rates. By granting only a pathetic 24 of 99 cases that actually were decided over four months, and “referring” the rest to Garland’s beyond dysfunctional “courts” (currently fighting an indescribably stupid all-out “war” with NGOs and pro bono attorneys), Mayorkas hasn’t come anywhere close to “leveraging” the system to locate, prioritize, timely grant many more legitimate cases, and drastically reduce the huge number of unnecessary referrals to EOIR.
Rather than “cleaning house” at USCIS and EOIR, bringing in dynamic, qualified leaders, expert adjudicators and judges who can timely recognize the many legitimate claims, working with NGOs and pro bono groups to get all asylum seekers represented, and utilizing the expert training resources that currently exist outside Government, Mayorkas and Garland are perpetrating the same anti-asylum myths spewed out by Miller, Trump, and company! Essentially, instead of fixing the fatal flaws in the current system, the Biden Administration has chosen to institutionalize and expedite them! That’s insane!
The Biden Administration’s failure to do the butt-kicking, bold, thoughtful work necessary to establish robust, timely, efficient, refugee and asylum systems is dragging down our legal system, promoting racial injustice, perpetrating xenophobic myths, advancing “worst practices,” harming, sometimes killing, legitimate refugees fleeing repressive regimes, and denying American communities legal residents who could be using their skills to help build a stronger economy and a better future for America.
With thousands of asylum seekers from countries where persecution is well-documented being “orbited” by nativist GOP Governors, the Biden Administration was presented with a golden opportunity to work with NGOs, states, and local governments to coordinate resettlement, get them competently represented, and grant asylum in a fair and timely manner, thus demonstrating how an improved asylum system could work with proper staffing, attitudes, and legal guidance. Instead, the Administration has chosen to waste time on a “thudding dud” of a pilot that shows a stunning lack of leadership, courage, imagination, initiative, humanity, and respect for the rule of law!
It is not easy to convey the magnitude of the ongoing disaster at EOIR, the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts. Simply stated, the agency is rescheduling and advancing hundreds–maybe thousands–of cases without notifying attorneys, checking whether we are available to attend the hearings or checking whether we have the capacity to complete the cases.
On its face, this appears to be a mere scheduling problem. But in effect, it is a vicious and unprecedented assault on immigrants, their attorneys, and due process of law.
“Advancing hearings with no notice and no time to prepare? Why didn’t I think of that?!”
For me at least, the problem started small. A few cases were rescheduled and advanced without anyone at the Immigration Court bothering to inquire about my availability: Your case that was scheduled for two years in the future has been advanced and is now set for two months in the future. I was angry and upset, but I did not want to let my clients down. So I set other work obligations aside. I set family time aside. I put off doctors appointments. And I completed the cases, which were approved. I hoped that these cases were anomalies and that EOIR would stop this unfair and abusive practice. But that was not to be.
Instead, EOIR has dramatically expanded its effort to reschedule cases, often without providing sufficient notice–or any notice–to get the work done for our clients. As best as we can tell, the problem is occurring in California, Colorado, Maryland, and Virginia. I myself have had about a dozen cases rescheduled and advanced (so far). These cases had been scheduled for 2023 or 2024, and suddenly, they are now set for the fall of 2022. Other attorneys have had 20, 30 or more cases advanced, including some that were double booked. One lawyer reported having seven cases scheduled for the same week and 47 cases set for one month. Another lawyer purportedly told a judge that if she had one more case scheduled within the next six months, she would commit suicide.
Here, I want to break down what is happening, so noncitizens in Immigration Court can at least have some idea about EOIR’s disruptive practices.
First, when I say that EOIR is not providing notice of the hearings, that is not entirely accurate. They are not sending us a notice or contacting us in advance. Instead, they are posting the new hearing dates on our portal. What does this mean? Each attorney has access to a portal page with a calendar. We can scroll through the calendar one month at a time. Days with hearings are highlighted, and we can click on those days to see what is scheduled. When I review my calendar, I often find new hearings that were not previously on the schedule. The only way to know whether a new hearing has been scheduled is to scroll through our portals month-by-month and compare what’s there with our existing calendar–a burdensome process that leaves plenty of room to overlook a date. Needless to say, every time I sign on to the portal, I feel a nauseous sense of dread about what I might find.
Once we discover the new date, we need to review the file, contact the client, and determine whether we can complete the case. This all takes time. If we cannot complete the case, or we do not have an attorney available on the scheduled date, we need to ask for a continuance. Of course, clients who have been waiting years for a decision usually want to keep the earlier hearing date. They do not understand why we cannot complete the work or why we are not available that day. Their perspective is perfectly reasonable, but they only have one case, where lawyers have many and we are daily being ambushed by EOIR with additional work. All this can result in conflicts between clients (who want their cases heard) and lawyers (who need time to get the work done). It also makes it difficult to serve our other clients, who must be pushed aside to accommodate the new work randomly being dumped on us.
Even if the client agrees to request a continuance, that does not solve the problem. Motions to continue can be denied. Even when they are granted, the judges tend to reset the date for only a few weeks in the future, which is often not enough time to properly complete the work. Other times, judges simply do not rule on the motion, so we are left to prepare the case, not knowing whether it will go forward or not.
Also, while we sometimes discover a new date that is a few months in the future (and so in theory, we might have time to do the work), other times, the new date is only a few weeks in the future. Since the evidence, witness list, and legal brief are due at least 15 days before the hearing, and since even a “simple” asylum case takes 20 or 30 hours to prepare, this is not nearly enough time. Worse, some cases are randomly advanced and placed on the docket after the evidence is due, and so by the time we have “notice” of the case, our evidence is already late.
Adding insult to injury, another common problem is that cases are still being cancelled at the last minute. And so we drop everything to prepare a case, only to have it postponed once all the work is done. Since this is all utterly unpredictable, it is impossible to prioritize our work or advise our clients.
Again, if this were only a few cases, attorneys could set aside other work and get the job done. But lawyers who do immigration law tend to have many cases, and we are seeing dozens and dozens of cases advanced with no notice. This is such a blatant and obvious abuse of due process that it is impossible to believe it is accidental. I might have expected this policy from the Trump Administration, which was hell-bent on restricting immigration by any means necessary. But as it turns out, President Biden’s EOIR is far worse than President Trump’s. Indeed, the current level of callousness would make even Stephen Miller blush.
The solution to these problems is so basic that it should not need to be said, but here it is anyway: EOIR should stop advancing and rescheduling cases without notice and without consideration for whether we have time to complete the work. Unless something changes, we can expect many noncitizens to be unfairly denied protection, immigration attorneys will leave the profession (or worse), and EOIR will become illegitimate. Let us hope that sanity and decency will soon return to the Immigration Courts.
*****************
Ever wonder why Dems struggle to govern and often lose elections they should win?This is a pretty good example of how the Biden Administration, through cowardice, ignorance, arrogance, and failure to prioritize racial justice and immigrant justice are “shooting themselves in the foot, over and over!”
They are going into midterms where every vote counts. They need “all hands on board” in the human rights community to help bail them out of the gross failures of the White House, Garland, and Mayorkas to reestablish a fair, efficient, and properly robust system for legally admitting refugees and processing asylum claims at the borders and the interior. This, in turn, has empowered disingenuous nativists like DeSantis and Abbott to “play games with human lives.”
But, the Biden Administration “strategy” is to do everything possible to offend and drive a wedge between them and some of their most loyal and important groups of supporters — the immigration, human rights, and racial justice communities. (Make no mistake: The ongoing disaster at Garland’s EOIR disproportionally targets individuals of color.)
Garland seems to be impervious to his self-inflicted disaster at EOIR.I think that advocates are going to have to sue to bring his “Stephen Miller Lite” travesty of justice at EOIR to a grinding halt. Those are resources that could and should be used to help asylum seekers “orbited” around the country by DeSantis and Abbott.
I, for one, have been saying for a long time that Garland’s unfathomably horrible performance at EOIR is a threat to our entire justice system and to the future of our nation. Sadly, every day, Garland proves me right!
The real shame: It was all so preventable with just a modicum of competence and backbone from our failing AG!
🇺🇸 Due Process Forever! Merrick Garland’s deadly Clown Courts 🤡, Never!
Was Merrick Garland AWOL during required training on legal and judicial ethics? Judging from how he runs “America’s worst court system” — where due process, fundamental fairness, and best practices go to die — we have to assume that that he thinks he has “risen above” the need to comply with ethical requirements! PHOTO: Wikipedia Commons
These are very graphic examples of Garland’s inexcusable failure to end the “haste makes waste, anything goes culture” @ EOIR — encouraged by Sessions and Barr but completely unaddressed by Garland!And, I guarantee this is just “the tip of the iceberg.” For every one of these outrageous errors caught by a Circuit, dozens are probably wrongfully denied relief and illegally ordered deported in Garland’s dysfunctional, due process denying, deportation assembly line!
But, beyond that, Garland’s failure to “clean house” at EOIR and hire qualified, expert, professional leaders, judges, and administrators is an ongoing national disgrace — one that is eating away the foundations of our justice system.
Here’s a “real life snapshot” from my “Morning Mailbox:”
I got 15 individual hearing notices in two days for October 2022. Right now the firm has 47 [Individual Hearings] in October for 4 attorneys to handle. A lot of the hearings we never even got notice for, we just randomly have been checking the portal and that’s how we are finding out. Once we do find out we are always about a month or less away from the hearing date. We are going to try to file motions to continue but who really knows what they are going to do about it. Also, I had an [Individual Hearing] with Judge _________ the other day, and he said that Respondents’ attorneys are having a hard time. He said he had a master that he had to schedule for an [Individual Hearing], and the Respondent’s counsel told him if he scheduled her Individual Hearing within the next 6 months she was going to commit suicide. He seemed really concerned for the attorneys. Hopefully this calms down, because the hearings are piling on and quite honestly no one has the manpower to do all of the [Individual Hearings] in especially such short notice.
This is insane, inexcusable, and totally uncalled for! Aimless Docket Reshuffling gone wild!
In what real “court” system is a judge “required” to schedule a hearing that he knows is beyond the ability of the lawyer to handle at the appointed time. That’s an ethical violation! Who is behind this mess? If the “buck stops at the top,” why isn’t Garland under under investigation for “operating a system” that clearly violates judicial and professional ethics?
Q: What happens when comedy 🎭morphs into tragedy☠️?
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NYT: Under a pandemic-driven public health rule, migrants have been turned away at the U.S. border 1.7 million times since Mr. Biden took office, a figure that includes some people who have attempted to cross multiple times. But the United States has allowed others to stay temporarily for a range of reasons, including because Mexico or their own countries will not take them back. Nearly 300,000 of those who have been allowed in — including many heads of families — have been outfitted with tracking devices so that Immigration and Customs Enforcement can keep tabs on their whereabouts while they await their day in court. See also ‘Tale of two borders’: Mexicans not seen at busy crossings.
WaPo: The oldest recipients were in their early 30s when DACA began and are in their early 40s today. At the same time, fewer people turning 16 can meet a requirement to have been in the United States continuously since June 2007.
Reuters: The agency found that since late last year, 57 unaccompanied migrant kids had been reported missing in Houston, the HHS official, and two additional sources familiar with the situation, said. Included in the count were nine kids who ran away from HHS shelters in the Houston area, the official said.
WaPo: The exodus from Venezuela has grown to the point that its refugee numbers are now close to those displaced by the conflict in Ukraine — but the European crisis has drawn disproportionately more financial support, according to an advocacy group. See also Ecuador begins regularization process for thousands of Venezuelan migrants.
CA: California would be the first U.S. state to ban solitary confinement in private civil detention centers used for immigrants who are under threat of deportation, under a bill that advanced Tuesday.
Law 360: Federal prosecutors accused a Texas contractor of misappropriating hundreds of thousands of dollars worth of funding from the U.S. Department of Health and Human Services that was intended to be used for housing unaccompanied migrant children.
Law 360: The Biden administration will focus on bringing over Afghans who have U.S. families in the next stage of its effort to relocate those fearing for their lives under the Taliban’s rule, a State Department spokesperson said Thursday.
Law 360: The American Samoa government told the U.S. Supreme Court Monday that imposing birthright citizenship on American Samoans would deprive them of the right to decide their status, going against American Samoa-born individuals who earlier appealed to the high court.
Law 360: The First Circuit was bound Wednesday to stand by an immigration appeals board decision that ordered a Guatemalan man removed from the country despite the hardship it would cause his children, saying the call was in line with the “hard-hearted” and “stringent statutory requirement.”
Law 360: The Board of Immigration Appeals was wrong when it refused to consider a psychological report explaining why an El Salvadoran teen seeking asylum had trouble remembering the details of sexual assaults that occurred when she was a child, a split First Circuit has ruled.
LexisNexis: [U]nder the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection…The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.
LexisNexis: This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause.
LexisNexis: [T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.”
Law 360: The Ninth Circuit revived a Sikh man’s second attempt at obtaining asylum in the United States, finding that the Board of Immigration Appeals should have considered new information he presented in his later bid about the dangers of living as a Sikh in India.
Law 360: A Ninth Circuit panel on Monday ruled that Arizona’s drug possession laws can support federal immigration removal orders despite banning a broader list of substances than the federal drug schedule because the Grand Canyon State requires juries to determine the specific drug type involved in each conviction.
Law 360: The U.S. Department of Health and Human Services’ Office of Refugee Resettlement must notify young detained migrants and their counsel when it decides against releasing them to their parents or relatives and provide reasons for withholding release, a California federal judge has ordered.
Law 360: U.S. Immigration and Custom Enforcement has agreed to pay $4.8 million to resolve a class action claiming the government routinely failed to consider safer options before transferring teens to adult detention facilities after they turned 18, according to a proposed settlement filed Thursday in D.C. federal court.
Law 360: Immigrants suing New York’s Suffolk County and its sheriff’s office over their practice of holding people past their release date by request of U.S. Immigration and Customs Enforcement have won over a federal judge, who recommended their proposed class be certified.
Law 360: Two California chapters of a national Muslim civil liberties group and 159 Iranian diversity visa applicants have sued the Biden administration in federal court, claiming they have been “skipped over” and “unreasonably delayed” in the processing of their applications “for no explicable reason.”
USCIS: U.S. Citizenship and Immigration Services (USCIS) today published a Federal Register notice for the extension and expansion of eligibility for Deferred Enforced Departure (DED) for Liberians and explaining how eligible Liberians may apply for Employment Authorization Documents (EADs).
USCIS: U.S. Citizenship and Immigration Services (USCIS) is resuming operations under the Cuban Family Reunification Parole (CFRP) program, beginning with pending CFRP program applications.
USCIS: U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to reorganize and expand on existing guidance related to special immigrant and nonimmigrant religious workers.
EOIR: The Executive Office for Immigration Review (EOIR) today announced it will open a new immigration court in Sterling, Virginia, on Oct. 3, 2022. The Sterling Immigration Court will include 19 immigration judges. It will be the second immigration court to open in the National Capital Region this calendar year.
CAIR: Peter Alfredson from CAIR Coalition’s Immigration Impact Lab is seeking examples of problems related to how IJs are using boilerplate addenda/statements of law in oral decisions. Please contact him at peter@caircoalition.org with any specific issues you’ve experienced with the addenda, including, but not limited to: IJs referring to the addenda but never actually providing them; addenda misrepresenting the law in a prejudicial way; and IJs using the addenda and engaging in little/no actual legal analysis in a particular case.
NIJC: If you have examples of prosecutorial discretion you are willing to share (anonymously to your client if you wish), please fill out this form: Amicus Stories. Also: if you are a nonprofit and would be interested in signing on as an amici, please fill out this form: Joining Amici. In particular, we are thinking of cases that fit into the following categories: Grants or Denials under the Mayorkas Memo of PD for the purpose of seeking some non-EOIR benefit, such as: Eligibility for U visa, Eligibility for adjustment of status, Eligibility for SIJS. Grants or Denials under the Mayorkas Memo of PD based on particular humanitarian or unique considerations: Military service (self or family), Undercover or confidential informant situation, Family separation. DACA / DREAMers, MPP, Old convictions / rehabilitation. Stories (even if they predate the Mayorkas Memo) involving: Circumstances where individuals who would have been subject to 236(c) were not placed in removal proceedings, and the person was able to pursue relief with USCIS because no proceedings were ever initiated. Circumstances where individuals who could have been subject to reinstatement of a prior removal order did not have that order reinstated and were able to do things like pursue a U or T visa before USCIS, without being detained or placed in removal proceedings.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Lack of analysis, prejudged cases, overt anti-immigrant bias, and absence of “applied” immigration, human rights, and due process expertise is an endemic problem at EOIR. Using canned law (some of it flat out wrong or at least questionable) in “addenda” appears to be another “built to fail,” due process denying, haste make waste “gimmick.”
Lousy analysis and basic mistakes appear in Federal Court rebukes of EOIR highlighted here, on LexisNexis, on ImmigrationProfblog, and other resources on an almost daily basis. And, we by no means are able to catalogue all of the abject failures being cranked out by Garland’s EOIR — many of which would embarrass an L-1! Why not get 1) better judges, 2) a better BIA, and 3) better training?
Garland has been “nibbling around the edges,” at best. A few enlightened appointments of well-qualified “practical scholars” to newly created judgeships in a failed system of some 600 judges nationwide with a fatally flawed “Trump holdover” appellate body, the BIA, won’t cut it.
EOIR needs new, exceptionally well-qualified, dynamic, due process oriented expert leadership and a new BIA that will begin solving the problems rather than aggravating them and shuffling them on to the Circuits. Hopefully, the CAIR effort will lead to “dialing up the pressure” on Garland and his lieutenants to “get their collective heads out of the clouds and kick some tail at what (despite the efforts of Article III right wing hacks like Judge Aileen “Loose” Cannon to claim the title) remains “America’s worst court system” — where due process, fundamental fairness, legal scholarship, and best practices “go to die.” 🪦
I don’t dispute that America’s judicial system is failing from top to bottom. But, unlike theArticle IIIIs, where there are long-term structural issues with constitutional roots that make “quick fixes” impossible, EOIR is “wholly owned and operated” by the Executive.
Systemic institutional reforms like replacement or reassignment of unqualified judicial and administrative personnel could, and should, have been a top priority for the Biden Administration. But, instead the tone deaf “it’s only immigration not a real priority” approach by Garland has allowed life-threatening legal malfeasance at EOIR to fester, spread, and undermine confidence in the ability of our democracy to survive.
News flash for Garland:EOIR is where the “rubber meets the road” for American justice. You continue to ignore and downplay the need for bold decisive corrective action at your own peril —and our nation’s!
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Raed Gonzalez ESQUIRE Chairman, Gonzalez Olivieri LLP Houston, TX PHOTO: best lawyers.com
From Dan:
Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)
“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. … [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”
[Yet another victory for Superlitigator Raed Gonzalez! Who else could persuade CA5 to agree with CA9, and get an award of costs?]
Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America! PHOTO: Creative Commons
Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit!
Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!
Rotten Tomatoes Garland & his lieutenants deserve appropriate recognition for failing to bring long-overdue reforms to America’s most dysfunctional “parody of a court system” — EOIR! PHOTO: Creative Commmons
Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases?I like the fee award but I doubt that it has much impact on their behavior.”
Professor Richard Boswell UC Hastings Law PHOTO: LinkedIn Professor Boswell asks the right question. So far, “Team Garland” has no answers!
I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!
If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary.
The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!
Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?
The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination.
How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?
By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!
One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!
Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!
It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!
Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights,and racial justice at DOJ!
I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!
It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”
Has Alfred E. Neumann been “reborn” as Judge/AG Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR! Public Realm
Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”
“[W]e conclude that the Board erred in affirming the IJ’s denial of CAT protection. The Board’s sole justification for that affirmance was the adverse credibility finding. The Board suggested that, under Fifth Circuit precedent, an adverse credibility finding defeats a claim for CAT protection. See Ghotra v. Whitaker, 912 F.3d 284, 289 (5th Cir. 2019). But under the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection.1 Ibarra Chevez v. Garland, 31 F.4th 279, 288 (4th Cir. 2022); see Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (“Because there is no subjective component for granting relief under the CAT, the adverse credibility determination on which the IJ relied to deny [the petitioner’s] asylum claim would not necessarily defeat her CAT claim.”). The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.2 See Camara, 378 F.3d at 371-72. Because the Board did not fulfill that duty, we will grant the petition for review in part and remand for the Board to do so.”
“Petitioner Oscar Gonzalez-Castillo was found to be ineligible for withholding of removal by an Immigration Judge (“IJ”) because there were “serious reasons to believe that [he] committed a serious nonpolitical crime” in his home country of El Salvador. 8 U.S.C. § 1231(b)(3)(B)(iii). The government only presented one piece of evidence supporting application of the serious nonpolitical crime bar, however. It was an INTERPOL Red Notice, described at greater length below. The Red Notice accused Gonzalez-Castillo of committing “strikes” on behalf of the gang MS13, allegedly committed on a date when Gonzalez-Castillo was in the United States rather than in El Salvador, based on the date of entry found by the IJ. We conclude that substantial evidence does not support the IJ’s finding, affirmed by the Board of Immigration Appeals (“BIA”), that Gonzalez-Castillo is ineligible for withholding of removal based on the serious nonpolitical crime bar. This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause. The allocation of the burden of proof in immigration proceedings does not change this outcome. We accordingly grant Gonzalez-Castillo’s petition for review in part and remand to the agency to consider whether Gonzalez-Castillo is eligible for withholding of removal. We also grant the petition as to his claim under the Convention Against Torture (“CAT”), because the record reflects that the agency failed to consider all of Gonzalez-Castillo’s testimony and statements about the harms he suffered in El Salvador at the hands of state actors, so we remand for more complete consideration of the CAT claim. We are not persuaded, however, by arguments in the petition for review challenging the evaluation of evidence that was discussed or by the argument that that the IJ failed sufficiently to develop the record. We dismiss the petition in part as to his claim for asylum, because the arguments Gonzalez-Castillo raises on appeal with respect to the one-year bar for asylum relief were not exhausted before the BIA.”
[Hats off to Amalia Wille (argued) and Judah Lakin, Attorneys; Nicole Conrad and Joya Manjur, Certified Law Students; University of California, Berkeley School of Law, Berkeley, California; for Petitioner, and John P. Elwood, Kaitlin Konkel, and Sean A. Mirski, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amicus Curiae Fair Trials Americas!]
“We have held that the Board of Immigration Appeals (BIA) may rely on a prior adverse credibility determination to deny a motion to reopen if that earlier finding factually undercuts the petitioner’s new argument. Greenwood v. Garland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does not mean the BIA can deny a motion to reopen just because that motion touches upon the same claim or subject matter as the previous adverse credibility finding. Here, Rupinder Singh submitted new evidence about religious persecution independent of the prior adverse finding. The BIA thus erred in holding that the earlier adverse credibility finding barred Singh’s motion to reopen. The BIA also erroneously concluded that Singh failed to show that the conditions for Sikhs in India changed qualitatively since his last hearing. Clear evidence shows the contrary. We thus grant the petition and remand.”
“Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge (“IJ”) based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings. … The BIA’s oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation.”
President Biden is correct that Trump and his MAGA GOP are the biggest threat to American democracy. But, “Dred Scottification,” systemic denial of due process, and racial injustice still running rampant in Immigration “Courts” under a Democratic Administration is right up there as an existential threat!
Additionally, I’ve been getting reports this week from practitioners in various locations that EOIR is embarking on yet another mindless, ill-informed round of “Aimless Docket Reshuffling” — guaranteed to increase backlogs, decrease effective representation, and spew out more unprofessional and unjust results.
Once more, this inane initiative appears to have been undertaken with neither advance input from, nor sufficient notice to, those most affected — respondents and their attorneys! Same old, same old! This must stop!
Enough, already! Why aren’t all the “movers and shakers” of American law lined up in front of Garland’s Office demanding that he end the assault on our Constitution, common sense, good government, and human decency that unfolds every day in the disgracefully dysfunctional parody of a “court” system that is his sole responsibility!
The bar and NGO communities have to fight Garland’s assault on due process and good government with every available tool!
Given our familiarity with the record at this point, we are prompted to note that it is not at all apparent to us how an application of the Frentescu factors to Dor’s case would lead to a particularly-serious-crime determination. For instance, consider again the June 1 incident — the BIA relied on a police officer’s assessment that Dor had a “large amount” of marijuana on him, but this on-the-scene appraisal by an officer is largely irrelevant to an immigration-law-driven determination that a crime is particularly serious pursuant to the guiding statutes, especially when the actual amount (25 grams, a small amount) is available. See Matter of Castro Rodriguez, 25 I. & N. at 703; Moncrieffe, 569 U.S. at 194 n.7. Consider, too, that while the BIA identified the type of sentence imposed as a Frentescu factor but never mentioned (or weighed) Dor’s sentences, we observe that
– 23 –
Dor received lenient sentences with respect to both offenses (a two-year probation and a one-year suspended sentence that never went into effect since Dor completed a violation-free probation period).
As to Dor’s involvement in trafficking as part of the calculus here, based on the amount in question, and again on the face of this record, this characterization seems ambitious. The May 20 offense officers observed Dor sell “20 bucks[‘ worth]” of marijuana to another individual; the June 1 incident revealed Dor had in his possession a digital scale, a large amount of U.S. currency, and 25 grams of marijuana.
Bottom line: The BIA’s particularly-serious-crime conclusion is devoid of any actual application of the Frentescu factors, and even if we considered it a solid application of the law to Dor’s case, we still do not have a sufficiently rational explanation of the BIA’s particularly-serious-crime conclusion as to Dor’s minor marijuana offenses, and a rational explanation is necessary to ensure Dor was appropriately precluded from obtaining the humanitarian relief he seeks.
DEAN’S LIST: A+‘s go to :
Edward Crane, with whom Philip L. Torrey, Crimmigration Clinic, Harvard Law School, Shaiba Rather, Lena Melillo, and Katie Quigley, Law Student Advocates, Crimmigration Clinic, Harvard Law School, were on brief, for petitioner.
In sum, the Government has identified no evidence that supports divisibility. The statute, the case law, and the available state court documents all support the opposite conclusion.11 Because Pennsylvania’s stalking statute is indivisible as to intent, we apply the categorical approach. And under the categorical approach, Section 2709.1(a)(1), which sweeps more broadly than its generic counterpart in the INA, is not a categorical match. Vurimindi’s offense of conviction therefore does not qualify as a removable offense.
The Dor case also presents a familiarly outrageous characteristic of American immigration policy — still going strong in the era of Biden, Harris, and Garland — “Dred Scottification” — that is systemic injustice — directed at Black Haitian refugees. Indeed, Dor is lucky to be in the “system” at all — no matter how biased and poorly functioning. Following in the footsteps of the overtly racist and xenophobic Trump Administration, under Biden more than 25,000 potential Haitian refugees have been arbitrarily returned under Title 42 with no process at all — not even the “veneer of due process” provided by EOIR! Seehttps://www.wola.org/2022/05/weekly-u-s-mexico-border-update-title-42-ruling-family-self-separations-more-drownings-haiti-expulsion-flights/.
The cases described above have been pending for three and six years, respectively. EOIR presents the worst of both worlds: lengthy delays and backlogs without due process and careful expert consideration of the issues involved. Injustice at a high cost, in more ways than one!
After trips to three levels of our broken immigration justice system, countless hours of legal time, and untold trauma and uncertainty for the individuals subjected to this dysfunctional system, these cases remain far from final resolutions. Now they go back into Garland’s incredible nearly two million case backlog!
Sometimes, the BIA uses this as an opportunity to invent a new “bogus theory of denial.” Other times, the files get lost or reassigned. In other words, they are subject to EOIR’s “specialty:” “Aimless Docket Reshuffling!”
Garland doesn’t lose any sleep over it because: 1) not his life on hold, 2) not his time and money being wasted, and 3) he isn’t paying attention! This is unacceptable public service! Plain and simple! And, there appear to be few, if any, real consequences for anybody except the individuals whose lives and futures are at stake and their (often pro bono) lawyers!
How completely “out of touch” is Garland? He has put bogus, “Mickey Mouse” time limits on new asylum adjudications. Doing incompetent and biased adjudications faster isn’t going to solve the problem. It will actually make backlogs worse and more importantly, increase the number of defective asylum denials — already at beyond unacceptable levels.
You can’t fix a broken system by making it “pedal faster!” Why, after all these years, Garland doesn’t understand that “fundamental rule of Goverment bureaucracy” is totally beyond me!
The obvious solution: Put emphasis on getting these cases right at the first instance. That means “canning” the “anti-immigrant default and assembly line process” and getting expert IJs willing to rule in favor of individuals where appropriate and a revamped BIA of expert judges willing to issue precedents favorable to individuals and insure that IJs properly follow them. It also means a BIA who will follow precedent even where it doesn’t produce a “DHS Enforcement-friendly result.”
Additionally, “lose” OIL’s often-dilatory or quasi-frivolous arguments designed to cover up EOIR failures and block justice! (HINT: The Assistant AG, Civil, one of the key sub-cabinet positions at DOJ, and OIL’s “boss,” remains unfilled approaching the halfway point of the Biden Administration.) This system is broken from top to bottom, including the litigation “strategy” that attempts to shield unfair and legally incorrect EOIR decisions from critical substantive review by Article III judges independent from the Executive.
Yes, Garland recently has “pruned” some of the deadwood at EOIR and brought in a few widely-respected expert “real judges.” That’s some progress.
But, he’s barely scratched the surface of the anti-immigrant culture, “haste makes waste” atmosphere, and shoddy decision making at EOIR and the poorly conceived litigation strategies at OIL! In particular, the dysfunctional DOJ immigration bureaucracy glaringly lacks inspired progressive due-process-committed, human-rights-focused, racial-justice-sensitive leadership willing to stand up for individual rights against Government overreach and abuses!
Of course, the “real” solution is to get the Immigration Courts out of DOJ and into an independent Article I structure. But, unfortunately, that isn’t going to happen tomorrow.
In the meantime, there is plenty that Garland could be doing to improve due process and professionalism and to “pave the way” for the eventual transition to Article I. The more dysfunctional Garland makes his system the more difficult and rocky that transition will be.
Garland isn’t getting the job done! Everyone who cares about the future of our nation and the rule of law should be asking why and demanding better from Garland and his “asleep at the switch” lieutenants!
High-powered lawyers like Courtney Saleski, National Co-Chair of DLA’s White Collar Practice, who successfully litigated Vurimindi in the 3rd Circuit have some “juice.” They need to team up with the ABA, FBA, AILA, ACLU, Human Rights First, NIJC, the NAACP,Catholic Conference, HIAS, and other human rights and civil rights groups and “camp on Garland’s doorstep” until he “pulls the plug” on his dysfunctional, unprofessional EOIR and brings in due-process-focused competence! How many resources and human lives can our nation afford to waste on Garland’s EOIR disgrace?
Individuals whose lives are subject to systemic injustice and their hard-working, often pro bono, attorneys might “dissent” from Garland’s dilatory approach to long overdue due process reforms and key personnel changes in his stunningly dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons
