Category: Max Bergmann

🏴‍☠️ AMERICAN OUTLAWS: THE CONTINUING SAGA OF EOIR’S FLAWED DECADE-LONG QUEST TO DENY PROTECTION TO HONDURAN WOMAN — LATEST CHAPTER: BIA Rebuked By 1st Cir. For Not Complying With Court Order!

Outlaws
BIA panel gets ready to “gun down” — in “cold blood” —  another meritorious appeal by immigrant! Court orders are no match for this gang that “shoots from the hip.”
PHOTO: Republic Pictures (1957), Public Domain

Dan Kowalski reports from LexisNexis Immigration Community:

CA1 on Evidence…Round 2! – Aguilar-Escoto II

Aguilar-Escoto II

“For the second time, petitioner Irma Aguilar-Escoto, a native and citizen of Honduras, asks us to vacate the Board of Immigration Appeals’ (“BIA” or the “Board”) rejection of her claim for withholding of removal. When this case was last before us, we vacated the BIA’s prior order and instructed the Board to consider the potentially significant documentary evidence submitted in support of Aguilar’s claim. See Aguilar-Escoto v. Sessions, 874 F.3d 334, 335 (1st Cir. 2017). Today, we conclude that the BIA again failed to properly consider significant documentary evidence. Consequently, we vacate the Board’s removal order and remand for further proceedings.”

[Hats off to Kenyon C. Hall, with whom Jack W. Pirozzolo, Sidley Austin, LLP, Charles G. Roth, National Immigrant Justice Center, and Carlos E. Estrada were on brief, for petitioner!]

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This case is a microcosm of everything that’s wrong about EOIR, a “captive,” denial-biased “court” system operating within the DOJ, an enforcement agency within the Executive Branch, over three different Administrations — two Dem and one GOP! But, there is more to this story!

THE REST OF THE STORY:

In 2013, this respondent appeared before an IJ and presented a well-documented claim for withholding of removal to Honduras based on domestic violence. Among the respondent’s documentation were a psychological report, three police reports, a medical report from Honduras, a protection order from a Honduran court, the respondent’s declaration, and affidavits from family members. In the first flawed decision, in 2014, the IJ denied the claim.

The respondent appealed to the BIA. In another flawed decision, entered in 2016, the BIA denied the appeal. In doing so, the BIA denied an asylum claim that the respondent did not make and ignored key documentary evidence that went to the heart of the respondent’s claim. This suggests that the BIA merely slapped a “form denial” on the case which reflected neither the nature of the case below nor the actual record before them. Immigration practitioners say this type of performance is all too common in the dystopian world of EOIR.

Consequently, the respondent, represented pro bono by NDPA stalwart Carlos E. Estrada, a solo practitioner, sought review in the First Circuit. That petition succeeded! In 2017, the First Circuit vacated the BIA’s erroneous decision and directed the BIA to redo the case, this time considering the material, independent evidence of persecution that the BIA had previously ignored.

At this point, the respondent and her attorney had every reason to believe that their ordeal was over and that justice, and potentially life-saving protection, was “just around the corner.” But, alas, those hopes were dashed!

The BIA botched it again! In 2018, in what appeared to be one of the BIA’s “standard any reason to deny” opinions, the BIA purported to “affirm” the 2014 flawed decision of the IJ. In doing so, “the BIA erred by failing to follow this Court’s [1st Circuit’s] instruction to independently consider on remand the documentary evidence and to determine whether that evidence sufficed to establish past persecution.” Basically a “polite description” of “contempt of court” by the BIA.

Among the problems, the BIA failed to mention or evaluate one of the police reports that went directly to the basis for the BIA’s denial. Indeed, in a rather brutal example example of just how un-seriously the BIA took the court’s order, they erroneously stated that there were only two police reports. Actually, the record contained THREE such reports — since 2013!

Faced with the need for yet a second trip to the First Circuit, pro bono solo practitioner Carlos Estrada was “stretched to his pro bono limits.” Fortunately, the amazing pro bono lawyers at Sidley Austin LLP and National Immigrant Justice Center (“NIJC”) heeded the call and assisted Estrada and his client in their second petition for review.  

With help from this “team of experts,” for the second time, the respondent “bested” EOIR and DOJ in the Circuit! While conceding that the BIA had errored in not complying with the court order, OIL, now under the direction of Dem A.G. Merrick Garland, advanced specious “alternative reasons” for upholding the BIA’s second flawed decision. These were emphatically rejected by the First Circuit! That court also noted that the (supposedly “expert”) BIA had applied the wrong legal standard in the case!

A rational person might think that after nearly a decade, this “charade of justice” would finally end, and the respondent would get her long-delayed, thrice-erroneously-denied relief. But, that’s not the way this dysfunctional and disreputable system works (or, in too many cases, doesn’t).

The First Circuit “remanded” the case to EOIR a second time, thus giving the BIA a totally undeserved THIRD CHANCE to improperly deny relief. Who knows if they will, or when they might get around to acting. 

But, within Garland’s dystopian system, which lacks quality control, doesn’t require recognized expertise in human rights from its “judges,” and tolerates a BIA dominated by Trump-appointed appellate judges known for their records of hostility to asylum and related forms of protection from persecution and/or torture, a result favorable to the respondent, within her lifetime, is far from guaranteed.

As Attorney Carlos Estrada summed it up to me, “I just couldn’t do it [the second petition for review] pro bono by myself.  I’m a solo practitioner.  Such a waste of time and effort.” 

Indeed, Garland’s failure to institute even minimal standards of due process, fundamental fairness, impartiality, expertise in his EOIR “court” system is unfairly stretching scarce pro bono resources beyond the limits, as well as denying timely, often life-saving or life-determining justice to individuals. 

In a fair, functional, professional system, Estrada, Sidley Austin, and NIJC could be helping others in dire need of pro bono assistance. The respondent could have been enjoying for the last decade a “durable” grant of protection from persecution instead of having her life “up in the air” because of defective decision-making at EOIR and ill-advised “defenses” by OIL. The system could be adjudicating new cases and claims, instead of doing the same cases over and over, for a decade, at three levels of our justice system, without getting them right.  

If you wonder why Garland’s broken EOIR is running an astounding 2.1 million case backlog, it’s NOT primarily because of the actions of respondents and their lawyers, if any! It has much to do with “Aimless Docket Reshuffling,” in “full swing” under Garland, incredibly poor judicial administration by DOJ/EOIR, poor judging by too many incumbents who lack the necessary expertise and demonstrated commitment to due process and fundamental fairness, poor administrative and judicial practices, inadequate training, and a toxic “culture of denial and disrespect for immigrants’ rights” that has been festering for years!

Do YOU think that sagas like this represent a proper approach to “justice in America at the retail level.” I don’t! But, incidents like this occur on a daily basis at EOIR, even if most escape the public spotlight! 

“Out of sight, out of mind!” But, sadly, not so for the individuals whose lives are damaged by this system and their long-suffering attorneys, whose plights continue to be studiously ignored by Garland and his lieutenants. (Has Garland EVER offered to meet with the private, pro bono bar to find out what really is happening in “his” courts and how he might fix it? Not to my knowledge!)

Hats way off to Carlos E. Estrada, Esquire; Kenyon C. Hall, Jack W. Pirozzolo, and the rest of the folks at Sidley Austin, LLP (I note that Sidley generously has provided outstanding pro bono briefing assistance to our “Round Table” in the past); and Charles G. Roth and his team at the National Immigrant Justice Center for this favorable outcome and for insuring that justice is done. Garland and the Dems might not care about justice for persons in the U.S. who happen to be migrants, but YOU do! That, my friends, makes all the difference in human lives and in our nation’s as yet unfulfilled promise of “equal justice for all.”

🇺🇸 Due Process Forever!

PWS

02-10-23

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TRUMP ADMINISTRATION’S WAR ON AMERICA’S GREATNESS CONTINUES –TILLERSON DECONSTRUCTS CENTURIES OF AMERICAN DIPLOMACY!

http://www.politico.com/magazine/story/2017/06/29/how-rex-tillerson-destroying-state-department-215319

Max Bergmann writes in Politico:

“The deconstruction of the State Department is well underway.

I recently returned to Foggy Bottom for the first time since January 20 to attend the departure of a former colleague and career midlevel official—something that had sadly become routine. In my six years at State as a political appointee, under the Obama administration, I had gone to countless of these events. They usually followed a similar pattern: slightly awkward, but endearing formalities, a sense of melancholy at the loss of a valued teammate. But, in the end, a rather jovial celebration of a colleague’s work. These events usually petered out quickly, since there is work to do. At the State Department, the unspoken mantra is: The mission goes on, and no one is irreplaceable. But this event did not follow that pattern. It felt more like a funeral, not for the departing colleague, but for the dying organization they were leaving behind.

As I made the rounds and spoke with usually buttoned-up career officials, some who I knew well, some who I didn’t, from a cross section of offices covering various regions and functions, no one held back. To a person, I heard that the State Department was in “chaos,” “a disaster,” “terrible,” the leadership “totally incompetent.” This reflected what I had been hearing the past few months from friends still inside the department, but hearing it in rapid fire made my stomach churn. As I walked through the halls once stalked by diplomatic giants like Dean Acheson and James Baker, the deconstruction was literally visible. Furniture from now-closed offices crowded the hallways. Dropping in on one of my old offices, I expected to see a former colleague—a career senior foreign service officer—but was stunned to find out she had been abruptly forced into retirement and had departed the previous week. This office, once bustling, had just one person present, keeping on the lights.

This is how diplomacy dies. Not with a bang, but with a whimper. With empty offices on a midweek afternoon.

When Rex Tillerson was announced as secretary of state, there was a general feeling of excitement and relief in the department. After eight years of high-profile, jet-setting secretaries, the building was genuinely looking forward to having someone experienced in corporate management. Like all large, sprawling organizations, the State Department’s structure is in perpetual need of an organizational rethink. That was what was hoped for, but that is not what is happening. Tillerson is not reorganizing, he’s downsizing.

While the lack of senior political appointees has gotten a lot of attention, less attention has been paid to the hollowing out of the career workforce, who actually run the department day to day. Tillerson has canceled the incoming class of foreign service officers. This as if the Navy told all of its incoming Naval Academy officers they weren’t needed. Senior officers have been unceremoniously pushed out. Many saw the writing on the wall and just retired, and many others are now awaiting buyout offers. He has dismissed State’s equivalent of an officer reserve—retired FSOs, who are often called upon to fill State’s many short-term staffing gaps, have been sent home despite no one to replace them. Office managers are now told three people must depart before they can make one hire. And now Bloomberg reports that Tillerson is blocking all lateral transfers within the department, preventing staffers from moving to another office even if it has an opening. Managers can’t fill openings; employees feel trapped.

Despite all this, career foreign and civil service officers are all still working incredibly hard representing the United States internationally. They’re still doing us proud. But how do you manage multimillion-dollar programs with no people? Who do you send to international meetings and summits? Maybe, my former colleagues are discovering, you just can’t implement that program or show up to that meeting. Tillerson’s actions amount to a geostrategic own-goal, weakening America by preventing America from showing up.

State’s growing policy irrelevance and Tillerson’s total aversion to the experts in his midst is prompting the department’s rising stars to search for the exits. The private sector and the Pentagon are vacuuming them up. This is inflicting long-term damage to the viability of the American diplomacy—and things were already tough. State has been operating under an austerity budget for the past six years since the 2011 Budget Control Act. Therefore, when Tillerson cuts, he is largely cutting into bone, not fat. The next administration won’t simply be able to flip a switch and reverse the damage. It takes years to recruit and develop diplomatic talent. What Vietnam did to hollow out our military, Tillerson is doing to State.”

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While Trump and his cronies fabricate security threats from refugees, Muslims, and immigrants (and, I guess we can now add “grandparents” to that list), the greatest threat to our national security is the Trump Administration itself and its toxic mix of arrogance, incompetence, ignorance, and disdain for America and all it has stood for.

PWS

06-25-17

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