🇺🇸⚖️🗽AMERICANS MUST REJECT THE FAR-RIGHT’S FICTIONAL “INVASION” CHARADE & THE REST OF THE BOGUS ANTI-IMMIGRANT AGENDA — It’s Racism, Pure &  Simple — There Is No “Invasion,” “Replacement Theory” Is A Racist Trope, The Borders Aren’t “Open,” Asylum Seekers Aren’t Trafficking Fentanyl (the very suggestion is facially absurd), & There Is More Than Enough Detention & Enforcement, Just Not Very Smart, Effective, Or, In Some Cases, Even Legal!☠️

 

https://www.washingtonpost.com/opinions/2022/09/01/republican-immigration-ads-invasion/

By Paul Waldman and Greg Sargent in WashPost:

. . . .

But over the airwaves and online, another story is playing out: an absolute torrent of ads meant to frighten and anger voters about immigration.

A new report from the pro-immigration group America’s Voice seeks to document this ongoing phenomenon. One of its key conclusions: “Republicans have made their nativist narrative a top messaging priority.”

In the world of Republican campaign ads, very little has changed since the xenophobic Trump presidency, and some of what’s in these ads is truly repellent.

Three themes dominate these ads, the report finds, and they are all wildly inflammatory and profoundly dishonest: The Biden administration has created “open borders,” undocumented immigrants are responsible for fentanyl overdoses and a full-blown “invasion” is underway.

The borders are anything but open; the Biden administration is pursuing, arresting and deporting people seeking to come to the United States by the thousands. The vast majority of fentanyl that comes in is smuggled through ports of entry in cars, boats and planes, not carried by undocumented immigrants. And as for an “invasion,” that’s no more true now than it was when Trump warned that caravans were about to overrun the country.

But the Republican ads portray horror and chaos — usually with a non-White face. Some ads show pictures of young Black men walking through rivers on their way to “invade” America, with language suggesting this “invasion” brings “terrorists, drugs and crime.”

Other ads say the Biden administration is supposedly “importing 20 million illegals and giving them amnesty” (the image for that one is people in Haiti), which can only be stopped by “a declaration of invasion.”

In some ads it’s not just an open border but a “wide open border” — once again, illustrated with pictures of Haitians. In others we’re told that “human, sex and drug trafficking are out of control because of Democrat governance,” while Democratic candidates “refuse to oppose Biden’s open border policy.”

Of course, there is no open border policy, but why should the fact that it doesn’t exist stop Democrats from opposing it? That just shows how sinister they are, these ads say, because they “want to destroy this country.”

All of this captures something essential about this political moment. For months, Republicans were certain they could spread fears of chaos in order to ride to victory in the midterms. They’d run on crime and immigration, not just to excite the base but also to scare unsettled swing voters.

Yet the dynamic unexpectedly shifted, and now disorder and, dare we say it, crime — as in the potential crimes of Donald Trump and many Jan. 6 defendants — are not necessarily playing in the GOP’s favor. The overturning of Roe v. Wade has unleashed another form of chaos and a host of new dangers threatening women. And all of these things are energizing Democrats.

. . . .

“Republicans are indulging in the worst kind of White nationalist rhetoric,” Frank Sharry, the executive director of America’s Voice, told us. “And an issue they thought would win over swing voters is at best a base mobilizer for voters they already have.”

What makes this all really ugly, however, is that the messaging remaining under the radar — which Democrats bear some blame for, having gone quiet on the issue — allows it to continue mostly unexamined. This, even though its worst incarnations — such as “great replacement theory” — have inspired recent mass shootings.

Along these lines, it’s worth keeping an eye on Blake Masters, the GOP Senate candidate in Arizona. He has trafficked heavily in great replacement theory and has run truly vile ads on immigration, including one that features machine-gun fire at the border. Yet in a place President Biden won by a whisker that’s also a border state, Masters is trailing by a meaningful margin.

As Sharry told us, Masters’s whole “declare an invasion” line “is not working, in a state where one-third of the voters are independents and border security is a top issue.”

Yet whether it works with independents and swing voters, this foul sewage has been flowing unabated. And it will surely continue to do so.

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

Read the complete article at the link.

The idea that individuals seeking to find a U.S. official who will listen to their asylum cases would be trucking along large amounts of fentanyl in their backpacks is facially absurd.

Ending scofflaw Trump failures to follow asylum and refugee laws at the border and beyond would not halt all illegal entries. No policy will do that, nor has there ever been one that even came close, although illegal incursions have risen and fallen over the years.

But, fair refugee and asylum programs that actually interpreted the applicable domestic and international laws correctly (instead of the “any reason to deny, no matter how wrong attitude” still widespread and tolerated at both Mayorkas’s DHS and Garland’s DOJ) and generously granted protection as was the intention behind the UN Refugee Convention in the first place would certainly encourage large segments of those now forced to irregularly cross the border instead to apply abroad or at legal ports of entry. 

It would also facilitate the USG working with NGOs, the UNHCR, states, and localities to get individuals needed assistance so that their legal claims could be processed in a fair, efficient, and timely manner. The latter objectives seem to have totally eluded both Mayorkas and particularly Garland. They continue to “blow off the experts” and flounder with mindless, “designed to fail,” “deterrence-focused” gimmicks. Talk about a lose-lose!

Also to state the obvious, if CBP were less focused on apprehending individuals who pose no real threat to the U.S., but merely want a fair shot at applying for legal protection — something our laws require that Trump annihilated, the Federal Courts have flubbed,  and Biden has done a substandard job of re-instituting — they would have time to focus more resources on drug and human smugglers. 

Instead, in perhaps one of the dumbest and most wasteful juxtapositions in recent American history, the CBP focus is on “apprehending” (a term I use lightly, since many individuals “want” to be “found,” so they can get access to the system otherwise improperly denied to them by CBP) those  merely seeking to comply with the law! To do that, CBP ignores or misses many of those who actually pose threats. At the same time, both DHS and DOJ use methods, attitudes, and legal interpretations that themselves undermine fundamental fairness, the rule of law, and humanity itself.

Immigrants are America’s past, present, and future! Indeed, climate change, rising oceans, drought, starvation, transportation improvements, globalized commerce, wars, religious bigotry, pandemics, and other factors beyond the control of any one government will continue to drive worldwide migration. 

Building walls, prisons, hate, resentment, and constructing bogus “invasion myths” will not change the reality of human migration and the necessity to adopt to and harness it in a smart, humane, realistic manner. Doing the opposite, will only diminish us as a nation and inhibit our own chances for future prosperity. But, in the end, it won’t stop human migration.

🇺🇸Due Process Forever!

PWS

09-04-22

⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)
Raed Gonzalez ESQ
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.)

https://www.ca5.uscourts.gov/opinions/unpub/19/19-60425.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/another-ca5-pereira-niz-chavez-remand-parada-v-garland#

“[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?]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Male Superhero
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
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
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!”

Alfred E. Neumann
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

🇺🇸 Due Process Forever!

PWS

09-03-22

🏴‍☠️“ANY REASON TO DENY”🤮 — GARLAND BIA’S BIASED, ANTI-ASYLUM JURISPRUDENCE CONTINUES TO GARNER PUSHBACK FROM ARTICLE III’s — Dem AG Needs To Pay Attention To Assault On Democracy, Rule Of Law Taking Place In HIS Dysfunctional “Courts!” — Garland Reportedly Plans More Backlog-Building, Due-Process-Denying “Aimless Docket Reshuffling” (“ADR”)!

Lady Injustice
“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:”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-credibility-cat-njoka-v-garland

CA3 on Credibility, CAT: Njoka v. Garland

Njoka v. Garland (unpub.)

“[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.”

[Hats off to Rajan O. Dhungana!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-interpol-red-notice-cat-gonzalez-castillo-v-garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

Gonzalez-Castillo v. Garland

“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!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-credibility-changed-conditions-sikhs-in-india—singh-v-garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

Singh v. Garland

“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.”

[Hats off to Garish Sarin!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-abuse-of-discretion-rivera-medrano-v-garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

Rivera-Medrano v. Garland

“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.”

[Hats off to SangYeob Kim, Gilles Bissonnette and Henry Klementowicz!]

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

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!

🇺🇸Due Process Forever!

PWS

00-02-22

DAN RATHER & ELLIOT KIRSHNER: TRUMP’S VERSI0N OF A “WEST WING NUDIST CAMP” — CHECK YOUR DECENCY @ THE DOOR, ENTERING AN “ETHICS FREE ZONE!” — “The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.” 🏴‍☠️

Clothing/Ethics Optional in MAGALAND
Ethics Prohibited Beyond This Point! “The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.” CREATIVE COMMONS.

They Knew. They All Knew.

Cowardice, Cynicism, Contempt, Rationalizations

Dan Rather and Elliot Kirschner

6 hr ago

1,403

476

Documents seized from Donald Trump’s Florida home (credit: Department of Justice)

Sometimes we write a lot of words on Steady. Today will be an exception. Because for all that there is to say, for all that needs to be said, for all that an accounting for history requires we say, the general sentiments are quite simple:

They knew. They all knew.

It was clear to anyone who had an ounce of appreciation for what the job of the presidency entails, to anyone who respected the constitutional order of our government, to anyone who worried about the health and safety of this nation, to anyone with a moral compass, to anyone who prizes the common sense of purpose that great leaders can summon, that Donald J. Trump had no business anywhere near the presidency.

Now, as he melts down in the face of a serious criminal investigation, as we see pictures of how he stored classified material and his utter disregard for our nation’s most sensitive secrets, as we are left to wonder what he was up to and what damage was done, we should recognize that we would not be where we are today without his enablers, apologists, and hangers-on.

They heralded his outrageousness in a chorus of sycophancy.
They feted his vileness.
They viciously attacked those who pointed out the obvious, that Trump was mentally, emotionally, intellectually, morally, and constitutionally unfit for his office.

And who are they? They are the Republican politicians, the so-called serious ones who expressed their concerns in private even as they used Trump to achieve their desired tax cuts and judges. They are the members of his administration — senior and junior — who jockeyed to maximize their career benefit at the expense of doing the necessary work for the American people. They are the lawyers who twisted themselves into pretzels to try to legalize his inherent lawlessness. They are the media personalities who saw Trump as a printing press for their accrual of wealth and power. They are the capitalists who put corporate earnings ahead of the well-being of the nation.

While Trump’s voters were primed with a toxic stew of hatred, bigotry, and divisiveness, the small cabal playing the inside game didn’t bother with the MAGA hats. They were too busy trading access for favors. The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.

But make no mistake…

In their cowardice, they knew.
In their cynicism, they knew.
In their contempt, they knew.
In their rationalizations, they knew.
In their acquittals of his conduct, even for impeachment, they knew.

They knew when they could have stopped him — before he became president, and once he was president.

But they didn’t stop him. And with their inaction, they encouraged him.

As the Trump bubble begins to pop, all these people who knew what he was all along will likely scurry like cockroaches when the lights go on. They will make all sorts of excuses for their complicity. They will gaslight, lie, and try to rewrite history. You can already see it in many of their so-called tell-all books. Except what they are telling is only the story they want people to hear. It is not the truth.

The truth is that they don’t dare say what we all know. They knew.

Note: If you are not already a subscriber to our Steady newsletter, please consider doing so. And we always appreciate you sharing our content with others and leaving your thoughts in the comments.

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Throughout history, despots and would-be despots have surrounded themselves with motley crews of sycophants, toadies, and retainers. Trump has excelled at it!

🇺🇸Due Process Forever!

PWS

09-01-22

☠️⚖️FAILNG JUSTICE:  IMMIGRATION JUDGES 👩🏽‍⚖️ NEED INDIVIDUAL LAW CLERKS, NOT MORE FALLS CHURCH BUREAUCRACY & FAILED GIMMICKS! — With “Garland’s Courts” Flunking 😰 “All Three Prongs Of Due Process,” Law Clerks Would Immediately Improve Quality & Save Lives!

Nicholas Bednar
Nicholas Bednar,JD
PhD Candidate
Vanderbilt University
PHOTO: SSRN Author Webpage

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4189963

The Public Administration of Justice

93 Pages Posted: 19 Aug 2022

Nicholas Bednar

Vanderbilt University, Department of Political Science

Date Written: August 14, 2022

Abstract

Adjudicatory agencies decide who receives social-welfare benefits, which inventions deserve patents, and which immigrants get to remain in the United States. Scholars have argued that agency adjudication lacks sufficient structural and procedural protections to ensure unbiased decision-making. Yet these critiques miss a key problem with agency adjudication: the lack of adjudicatory capacity. This Article argues that low-capacity agencies cannot satisfy the Due Process Clause’s demand for accurate decision-making. To produce accurate decisions, adjudicatory agencies need sufficient levels of capacity: (1) material resources, (2) expert adjudicators, and (3) support staff. When agencies lack these resources, their adjudicators rely on various coping mechanisms to manage their workloads. They shorten hearings, make assumptions about respondents’ claims based on appearance, or take other steps to reduce the cognitive burdens associated with a high workload. Yet these coping mechanisms introduce error into the decision-making process. Often, these errors are not random and, instead, bias against one party to the dispute.

This Article uses the Immigration Courts as a case study of this phenomenon. The Executive Office of Immigration Review (EOIR)—the agency charged with adjudicating the removal of noncitizens from the United States—suffers from severe understaffing and has amassed a backlog of over 1.7 million cases. Analyzing over 1.5 million removal proceedings and 32,000 personnel records, this Article uses causal and statistical methods to examine the effect that one element of adjudicatory capacity (i.e., law clerks) has on outcomes in the Immigration Courts. This analysis finds that providing an Immigration Judge with one law clerk decreases the likelihood of removal by 5.2 percentage points and increases the likelihood of an asylum grant by 4.4 percentage points. These effects are significant and exceed the effect sizes of other known contributors to bias, such as the IJ’s prior employment and appointing president.

Why do adjudicatory agencies, like EOIR, appear starved for resources? This Article argues that neither Congress nor the president have sufficient electoral incentives to invest in these agencies. As a result, adjudicatory agencies will continue to make systematic errors without intervention. However, the Due Process Clause demands accurate systems of agency adjudication. If Congress and the president will not uphold their duty to build capacity within these agencies, then courts must reform administrative-law doctrine to promote due process. By reimagining the law of agency adjudication from a public-administration perspective, courts can provide agencies with the flexibility they need to manage their workloads while protecting the due-process rights of the respondents who appear before agency adjudicators.

Keywords: Administrative Law, Immigration, Due Process, Bureaucratic Capacity

Suggested Citation:

Bednar, Nicholas, The Public Administration of Justice (August 14, 2022). Available at SSRN: https://ssrn.com/abstract=4189963 or http://dx.doi.org/10.2139/ssrn.4189963

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

I agree with Bednar’s “bottom line:” With neither Congress nor the Executive motivated to bring EOIR into line with Constitutional Due Process, the task falls to the Article IIIs. Some judicial decisions have exposed the glaring, unacceptable constitutional and quality-control flaws in EOIR’s embarrassing and life-threatening dysfunction. Sadly, however, for the most part Article IIIs, starting with the Supremes, have failed to take the decisive action necessary to end the unjust nonsense at EOIR and require even minimal systemic reforms.

Notably, a PhD candidate with a JD knows exactly how to begin addressing the massive due process failure @ EOIR in a practical, easily achievable manner! But, nearing the midpoint of the Biden Administration, a distinguished former Federal Judge, once only a Mitch McConnell away from the Supremes, doesn’t “get it?” 

On the DC Circuit, Garland had four individual Judicial Law Clerks. https://www.chicagotribune.com/news/breaking/ct-chicagoans-clerked-for-merrick-garland-03-18-20160324-story.html.

And, with due respect, 1) he issued far fewer opinions annually than an average Immigration Judge (fewer than 50 compared with 700+); 2) few of his decisions involved the potential “life of death” or at least “life-determining” consequences of decisions in Immigration Court. See generally, https://www.scotusblog.com/2019/10/empirical-scotus-the-singular-relationship-between-the-d-c-circuit-and-the-supreme-court/

One individual, personally selected, law clerk for each Immigration Judge seems like a very “modest ask.” Why hasn’t Garland “picked this low hanging fruit?”

Perhaps he needs to listen to Nicholas Bednar rather than out of touch politicos and bureaucrats at DOJ and EOIR! As Bednar points out, EOIR is a prime model of disastrous, horrible, failed “public administration of justice.” The public and the individuals whose lives hang in the balance deserve much better!

🇺🇸 Due Process Forever!

PWS

08-31-22

THE GIBSON REPORT — 08-29-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC

Elizabeth Gibson
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.

CONTENTS (jump to section)

PRACTICE UPDATES

EOIR Practice Manual & BIA Practice Manual

EOIR: In response to comments from the public, EOIR is once again making the Board and Immigration Court Practice Manuals available as downloadable PDF documents. [Also, the BIA Practice Manual now lists the BIA brief page limit at 50 pages.]

Penn State Law: DACA Final Rule: What You Need to Know

NEWS

Biden administration moves to make DACA harder to challenge in court

NPR: NPR’s A Martinez talks to Homeland Security Secretary Alejandro Mayorkas about the Deferred Action for Childhood Arrivals (DACA) program which is now in the federal government’s code of regulations.

She’s at Brown. Her Heart’s Still in Kabul.

NYT: In their first year at U.S. universities, women who escaped the Taliban are struggling to adjust — and to reckon with what they left behind. See also One year on, Afghan refugees find shelter but little security in US.

Visa rules in Mexico don’t stop Venezuelans headed to US

AP: In 2021, when Venezuelans could still fly to Cancun or Mexico City as tourists, only 3,000 of them crossed the Darien Gap — a literal gap in the Pan-American Highway that stretches along 60 miles (97 kilometers) of mountains, rainforest and rivers. So far this year, there have been 45,000, according to Panama’s National Immigration Service.

A ‘radical shift’ at the border is making things tougher for Biden

CNN: Back in 2007, the number of migrants in this “other” category was negligible. But since then, it’s grown dramatically — 11,000% — with the sharpest increase in just the past two years.

New Mexico won’t deny law licenses over immigration status

AP: Announced Monday, the rule change from the New Mexico Supreme Court is scheduled to take effect Oct. 1. Several states already have provisions that disregard residency or immigration status in licensure decisions.

Unaccompanied Immigrant Children Who Are Pregnant And In US Custody Are Being Moved Across State Lines To Access Abortion Services

Buzzfeed: ORR is working on an updated policy, and advocates have heard that the agency was already transferring minors to other states if they need access to abortion services, Amiri said. But nothing official has been released.

LITIGATION & AGENCY UPDATES

1st Circ. Says BIA Didn’t Explain Seriousness Of Weed Crime

Law360: The First Circuit has told the Board of Immigration Appeals to have another look at a Haitian man’s asylum request, saying the board did not adequately explain why his marijuana offenses made him ineligible for asylum.

3rd Circ. Says Pa. Stalking Conviction Isn’t Deportable

Law360: The Third Circuit ruled that U.S. Department of Homeland Security couldn’t deport an Indian immigrant over a stalking conviction, saying the man was convicted under an overbroad Pennsylvania law that criminalized misconduct that doesn’t warrant deportation.

CA4: IJ Milo Bryant Violated Respondent’s Due Process Rights; Illegal Reentry Indictment Dismissed

LexisNexis: During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing…Ultimately, we agree with Fernandez Sanchez that there is a reasonable probability that, but for the denial of his appeal rights, he would not have been deported.

Allies Tell DC Circ. Green Card Delays Threaten Safety

Law360: Afghan and Iraqi allies suing the federal government over delays with their green card applications told the D.C. Circuit that a lower court’s refusal to impose a deadline to address the delays endangers their lives given the deteriorating security conditions in their homelands.

Blogger Cops To Assisting Attys’ Alleged Immigration Scam

Law360: A New York City blogger told a Manhattan federal judge Wednesday that he assisted two lawyers in creating fraudulent asylum applications to submit to U.S. immigration authorities, pleading guilty to a conspiracy count.

GEO Group Hit With Investor Suit Over Forced Labor Claims

Law360: An investor of The GEO Group has lodged a derivative suit against higher-ups of the private prison operator, saying their disclosures about GEO’s financial prospects didn’t match internal financial concerns stemming from lawsuits alleging forced labor by immigrant detainees.

DHS Issues Regulation to Preserve and Fortify DACA

DHS: Homeland Security Secretary Alejandro N. Mayorkas today announced that the Department has issued a final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.

EOIR 60-Day Notice and Request for Comments on Proposed Revisions to Forms EOIR-42A and EOIR-42B

AILA: EOIR 60-day notice and request for comments on proposed revisions to Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, and Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.

DOJ 60-Day Notice and Request for Comments on Proposed Revisions to EOIR-44

AILA: DOJ 60-day notice and request for comments on proposed revisions to Form EOIR-44, Immigration Practitioner Complaint Form. Comments are due 10/24/22.

RESOURCES

EVENTS

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

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

www.immigrantjustice.org | Facebook | Twitter

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

Thanks, Elizabeth!

As usual, this is a good rundown of some of the continuing problems that Garland’s EOIR is having in the Federal Courts, including a few items previously reported on Courtside.

🇺🇸 Due Process Forever!

PWS

08-30-22

🏴‍☠️CRISTIAN FARIAS @ VANITY FAIR: WHAT HAPPENS WHEN A MAJORITY OF A DEMOCRACY’S TOP JUDGES NO LONGER BELIEVE IN DEMOCRACY & ARE UNWILLING TO DEFEND IT?☠️

Cristian Farias
Cristian Farias
Writer 
Vanity Fair

https://www.vanityfair.com/news/2022/08/post-roe-scotus-is-on-a-collision-course-with-democracy

After destabilizing the nation over abortion, and moving further right on guns, climate, and religion, the conservative justices’ sights are on affirmative action, voting rights, and a fringe legal theory that could empower Trump-friendly state legislatures for future elections.

BY CRISTIAN FARIAS

AUGUST 25, 2022

On the eve of his retirement, the nation’s first Black justice and ­constitutional giant, Thurgood Marshall, took a moment to denounce the Supreme Court of the United States over its “radical” path of abandoning past decisions for no other reason than the court’s membership had changed. Owing to these shifts in personnel, Marshall charged, now “scores of established constitutional liberties” hung in the balance, the powerless were left defenseless, and the court’s own authority and legitimacy were diminished. “Power, not reason, is the new currency of this Court’s decisionmaking,” Marshall warned in 1991, in what turned out to be his final dissenting opinion.

The dissenting justices in Dobbs v. Jackson Women’s Health Organization, the watershed case that discarded nearly 50 years of American jurisprudence protecting a woman’s right to terminate a pregnancy, felt the need to quote from Marshall’s decades-old warning because power, indeed, is the only sensible explanation for the Supreme Court’s present course. The seismic end of Roe v. Wade and Planned Parenthood v. Casey, two pillars of a much larger structure of unenumerated constitutional rights the high court has erected over almost a century, was neither legally necessary nor a product of profound changes in American society. Instead, five justices tore these precedents off the law books, ushering in a new era of abortion criminalization and second-class citizenship for half the nation, simply because they could—and had the numbers to do so. “Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did,” wrote Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in their anguished Dobbs dissent. “All that has changed is this Court.”

As radical and destabilizing as the fall of Roe is for our most intimate personal decisions, beyond just abortion rights, its ripples will extend to other areas where the conservative justices are already smelling blood. Not satisfied with the erasure of just one constitutional right, Clarence Thomas, writing separately in Dobbs, indicated that contraception and same-sex marriage could be next. That future begins now. These actions and other signals make abundantly clear what Marshall foresaw: The Supreme Court is on a collision course with democracy itself. Dobbs merely sets the stage.

Every new justice creates a new court, the maxim goes. Yet for much of their time on the bench, Justice ­Samuel Alito, long a soldier in the Republican holy war to curtail abortion rights, and Thomas, an avowed Roe antagonist, had the will but not the votes to impose their antiabortion vision on the majority of the Supreme Court, much less on the rest of the country. Their fortunes, and power, changed with the election of Donald Trump, whose own marriage of convenience with white evangelicals and social conservatives paved the way for his presidency and the installation of three new justices of a different mold, all of them more extreme and lacking the moderation of Republican appointees of the past, including those who made Roe and Casey possible.

Next to this “restless and newly constituted Court,” as Sotomayor branded this new majority in June, Chief Justice John Roberts looks as weakened as ever. The Supreme Court may bear his name, and the chief may have come of age during the abortion wars of the 1980s and ’90s, but neither his title nor institutionalist bent could convince the reactionaries to his right that their ­power grab in Dobbs represented “a serious jolt to the legal system” that he simply could not join in full. Too much, too soon. To the Trump justices, plus Thomas and Alito, this shock to the nation could not come soon enough.

Nominated by a president who lost the popular vote and narrowly confirmed by a Senate plagued by minority rule, these justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were all groomed for this moment. All of them were grown in the test tube of the Federalist Society, the conservative legal brain trust that for decades has been a judicial pipeline for Republican administrations and state governments, which since the time of Ronald Reagan have made the fall of Roe a white whale of their politics.

. . . .

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

Read the rest of the article at the link.

Cristian creates an interesting vignette. The Justices take a few minutes to gather to welcome Justice Ketanji Brown Jackson to the Court. Then, the Right Wing Majority goes to work ignoring her views, insuring her marginalization, and pushing a minority agenda drawing into question her very existence as a person under law. 

The conclusion of the article is perhaps most illustrative of the uncertain future of democracy, human rights, equal justice, and indeed basic human decency:

“Women are not without electoral or political power,” wrote without irony the five justices who ended their right to be full and equal citizens before the law in Dobbs. In asserting power rather than reason over what remains of our less than perfect union, the Supreme Court may well unravel democracy with it, taking us down a path from which there is no return.

Quite an achievement for a Court now dominated by those appointed by Presidents whose election (initial or sole) contravened the will of the majority of voters.

“Better Judges for a Better America!” Why not start with your “wholly owned and operated” Immigration Courts, Merrick Garland?

🇺🇸Due Process Forever!

PWS

08-29-22

More from today’s WashPost on the threat to our democracy posed by the anti-democracy, scofflaw GOP and their right wing judges:

William Webster and William Cohen on how today’s MAGA-infested GOP has become a cult of the lawless: https://www.washingtonpost.com/opinions/2022/08/26/mar-a-lago-fbi-attacks-lawless-gop/

E.J. Dionne on how the “off the rails, far right” GOP Supremes’ majority threatens  humanity’s future with their anti-scientific, anti-government, anti-truth far right agenda:  https://www.washingtonpost.com/opinions/2022/08/28/west-virginia-epa-inflation-reduction-act/

Jennifer Rubin on how one distinguished Senior U.S. District Judge, a Clinton appointee, stood up to the GOP’s anti-abortion overreach: https://www.washingtonpost.com/opinions/2022/08/28/federal-judge-pushback-idaho-abortion-ban/

 

DOJ’s IMITATION OF DHS “SERVICE CENTERS” IN VA MIGHT OFFER LITIGANTS A CHANCE AT BETTER LAW!  😎 — Hon. Jeffrey Chase Points Out How DOJ’s Efforts To “Dumb Down” 😩 Immigration Courts & Replace Judicial Decision-Making With “Rote Adjudication” Could Unintentionally Give Individuals A Better Due Process Option!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2022/8/16/the-4th-circuit-on-jurisdiction

Blog Archive Press and Interviews Calendar Contact

The 4th Circuit on Jurisdiction

On June 30, the U.S. Court of Appeals for the Fourth Circuit issued a decision that might not have received the attention it deserved.  The end result of the court’s published decision in Herrera-Alcala v. Garland was to affirm an Immigration Judge’s denial of asylum based on a lack of credibility.1

But before reaching the merits, the court addressed a jurisdictional issue, and that is where our interest lies.  At his removal proceeding, the petitioner was detained at a Louisiana correctional facility, which placed him physically within the territory of the Fifth Circuit.  For some reason, the Administrative Control Court (which is where the administrative record for the case was created and maintained, and where documents were filed by the parties) having jurisdiction over that Louisiana correctional facility was in Fort Snelling, Minnesota, which is physically located within the Eighth Circuit’s jurisdiction.

However, the immigration judge who conducted the hearing remotely by video and rendered the decision was sitting at the Immigration Adjudication Center in Falls Church, Virginia, which is within the geographic jurisdiction of the Fourth Circuit.  So after the BIA dismissed the petitioner’s appeal, his counsel sought review with the Fourth Circuit.  The Department of Justice moved to change venue to the Fifth Circuit, arguing that the petitioner’s location was determinative. And an amicus brief filed by an immigrants’ rights group took the position that venue properly belonged in the Eighth Circuit, where the control court was located.

The Fourth Circuit resolved the question of jurisdiction using the language of the relevant statute.  Since 8 U.S.C. section 1252(b)(2) states that the “petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings,” the court interpreted that to mean it is the location of the judge that determines jurisdiction.  And as the judge in this case was in Virginia, it found proper jurisdiction to be with the Fourth Circuit.

The decision yields an immediate benefit, as there are presently nineteen Immigration Judges sitting in the two Immigration Adjudication Centers that are located within the Fourth Circuit’s jurisdiction (in Falls Church and Richmond, VA).  Based on the Fourth Circuit’s ruling, any of the thousands of noncitizens whose cases were heard by one of these Virginia-based judges now have the option of seeking judicial review in the Fourth Circuit.

The impact of this becomes apparent when we look at the BIA’s precedent decision in Matter of L-E-A-.2  In that case, the Board held that the respondent’s family constituted a valid particular social group for asylum purposes, but then denied asylum by finding that a nexus had not been established between that family membership and the feared persecution.  In fact, the decision created an unreasonably high standard for nexus in a commonly occurring type of asylum claim.   But the decision contains a footnote recognizing that the Fourth Circuit holds a significantly different view of nexus in such cases, adding that L-E-A- did “not arise in the Fourth Circuit.”3

Although the Board doesn’t go as far as saying so, applying Fourth Circuit case law to the facts of L-E-A-  would have resulted in a grant of asylum.  As I discussed in far greater depth in this blog post in December, the Fourth Circuit has repeatedly reversed the Board on nexus, citing the latter’s error of focusing on why the persecutor targeted the group in question, instead of asking why they targeted the asylum applicant themself.  For example, if the group in question is a family, it doesn’t matter if the persecutor is targeting that family for an unprotected reason such as money, revenge, or self-preservation.  Per the Fourth Circuit, if the asylum seeker themself wouldn’t be targeted if not for their membership in that family, then nexus has been established, regardless of the reason the family is at risk in the first place.4

In addition to its more favorable take on nexus, the Fourth Circuit is also among the handful of circuits to consider verbal death threats to constitute persecution.5  This is  important, because one who has been threatened in those circuits has thus established past persecution, causing burdens of proof regarding future fear and internal relocation to then shift to the government to rebut, and further opening the possibility for humanitarian grants of asylum even where the government meets its burden of rebuttal.6

The Fourth Circuit has also imposed on Immigration Judges a strong obligation under international law to fully develop the record in hearings involving asylum claims, particularly (but not exclusively) where the respondent is pro se, and considers an IJ’s failure to meet this obligation to be “presumptively prejudicial.”7   Any attorney who is representing on appeal an asylum applicant who appeared pro se below where the IJ had been sitting in Virginia might want to review the record to see if the duties imposed by the Fourth Circuit to develop the record, which includes a “broad and robust duty to help pro se asylum seekers articulate their particular social groups,” was satisfied.8

In spite of the above-listed benefits, advocates have identified a potential downside to the ruling in Herrera-Alcala should the Fourth Circuit’s view on jurisdiction be adopted nationwide.  To illustrate this concern, I’ll use a hypothetical example arising in a circuit such as the Fourth with a body of case law favorable to asylum applicants.  Let’s imagine that after briefing and documenting the claim in line with that circuit’s law, the presiding judge in Baltimore is out sick on the day of the merits hearing.  A deserving asylum seeker could have a likely grant of asylum upended if a judge stationed in a jurisdiction with far less favorable case law is enlisted to hear the case by video under EOIR’s “No Dark Courtrooms” policy.9  While the intent behind substituting in a remote judge might be an innocent one, the impact on the asylum seeker of unexpectedly having to overcome a much tougher standard for nexus or a narrower definition of persecution could be devastating, as the Matter of L-E-A- example illustrated.

The Fourth Circuit’s view is presently limited to the Fourth Circuit.  But should it come to be the universal rule, while whether a particular circuit will accept jurisdiction over a petition for review is beyond EOIR’s control, the agency may itself still choose which circuit’s case law its own Immigration Judges should apply in individual cases before the Immigration Courts.  EOIR would do well to look to the example of USCIS, which advises its asylum officers conducting credible fear interviews that where there is disagreement among the circuits as to the proper interpretation of a legal issue, “generally the interpretation most favorable to the applicant is used when determining whether the applicant meets the credible fear standard.”10

I mentioned above the Fourth Circuit’s recognition of the duty of Immigration Judges to ensure that the record is fully developed in asylum claims.  Scholars credit that obligation to the legal requirement on nations to implement treaties in good faith.  For example, in discussing the adjudicator’s duty to develop the record in asylum cases, two leading international refugee law scholars explain the duty to implement treaties in good faith as holding states “not simply to ensuring the benefits of the Convention are withhold from persons who are not refugees, but equally to doing whatever is within their ability to ensure recognition of genuine refugees.”11

But shouldn’t that same obligation apply to not only developing the evidence of record, but also to deciding which law to apply when, as in Herrera-Alcala, there is more than one option?  If there is an obligation on our government to do everything in its ability to ensure recognition of genuine refugees, then isn’t that obligation breached where an individual sitting in a geographic area in which the law deems her deserving of asylum is then denied protection because the judge being beamed into that courtroom is sitting in a place with less enlightened precedent?

Copyright Jeffrey S. Chase 2022.  All rights reserved.

Notes:

  1. Herrera-Alcala v. Garland, Nos. 20-1770, 20-2338, ___ F.4th ___ (4th Cir. June 30, 2022).
  2. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017).
  3. Id at 46, n.3.
  4. Perez Vasquez v. Garland, 4 F.4th 213, 222 (4th Cir. 2021).
  5. See Sorto-Guzman v. Garland, No. 20-1762, ___ F.4th ___ (4th Cir. Aug. 3, 2022) (restating the court’s repeated holding that “the ‘threat of death’ qualifies as persecution.”); Bedoya v. Barr, 981 F.3d 240, 246 (4th Cir. 2020) (emphasizing that “under our precedent, as we have repeatedly explained, a threat of death qualifies as past persecution”).
  6. 8 C.F.R. §§1208.13(b)(1), 1208.13(b)(3)(ii), and 1208.13(b)(1)(B)(iii); see also Matter of D-I-M-, 24 I&N Dec. 448 (BIA 2008); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).
  7. Arevalo Quintero v. Garland, 998 F.3d 612, 642 (4th Cir. 2021) (italics in original).
  8. Id. at 633.
  9. March 29, 2019 Memo of EOIR Director, “No Dark Courtrooms,” OOD PM 19-11.
  10. USCIS Asylum Division Officer Training Course, Credible Fear of Persecution and Torture Determinations (Feb. 13, 2017), at 17.
  11. James C. Hathaway and Michelle Foster, The Law of Refugee Status (2d Ed.), Cambridge Univ. Press, 2014, at 119.

AUGUST 16, 2022

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a formerImmigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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

At the “Legacy INS,” the acronym for what were then called “Remote Adjudication Centers” was “The RACK” — with good reason! Once upon a time, EOIR went out of the way to emphasize the differences with, and independence from, INS —  it ran “courts” not “adjudication centers,” and it was comprised of “judges” NOT “adjudicators.”

Indeed, I can remember a past (in person) IJ National Conference where a senior DOJ official received a rather chilly reception for referring to the IJs in the room as “highly paid immigration examiners who worked for the AG.”

But, times change, and passage of time does not always bring progress. In many important ways EOIR is going backwards. Over the years, particularly 2017-2021, it probably has become more “politicized, compromised, weaponized, and subservient to immigration enforcement” than it was when it operated within the “Legacy INS.” Now, its bloated hierarchical bureaucracy, unmanageable backlogs, lousy public service, and emphasis on “productivity” and carrying out DOJ policies, looks more and more like DHS — the successor to the agency from which it declared “independence” back in 1983. What an unforgivable mess!

Star Chamber Justice
The “RACK” “processes” another “adjudication.”

Here’s a recent post with my “take” on Herrera-Alcalahttps://immigrationcourtside.com/2022/07/02/⚖%EF%B8%8Fvenue-venue-whos-got-the-venue-the-4th-circuit-herrera-alcala-v-garland/

As a “vet” of thousands of Televideo Hearings during my 13+ years on the bench at Arlington, I can definitively say that they are inferior to in person hearings, for many reasons. But, sometimes bureaucratic attempts to “depersonalize” justice, cut corners, and achieve bureaucratic goals produce unanticipated outcomes!

🇺🇸 Due Process Forever!

PWS

08-28-22

🤯HASTE MAKES WASTE — DEFENDING IT’S WORSE: IJ’s Due Process Errors During 4-Min. Hearing 11 Years Ago Touch Off 4 Years Of Litigation Ending In Another Crushing Rebuke Of Garland’s DOJ By 4th Cir! — As Judge Wayne Iskra said, “This system is broken!”

U.S. v. Fernandez-Sanchez, 4th Cir., 08-25-22, published

https://www.ca4.uscourts.gov/opinions/204061.P.pdf

WYNN, Circuit Judge:

Bonifacio Fernandez Sanchez, a Mexican citizen who migrated to the United States

illegally as a minor in 2006, was deported in 2011 following a four-minute removal hearing. During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing.

In the years since, Fernandez Sanchez has returned to the United States and been deported multiple times. Upon discovering him in the country once again in 2018, the Government opted to arrest and charge him with illegal reentry in violation of 8 U.S.C. § 1326(a). Fernandez Sanchez moved to dismiss his indictment, arguing that the 2011 deportation order underlying his § 1326 charge was invalid.

The district court agreed, finding that the immigration judge’s failure to advise Fernandez Sanchez regarding his eligibility for voluntary departure rendered his 2011 removal fundamentally unfair. However, while this appeal was pending, we effectively rejected the district court’s reasoning in United States v. Herrera-Pagoada, 14 F.4th 311 (4th Cir. 2021). Fernandez Sanchez nevertheless maintains that the district court’s decision must be affirmed on an alternative basis: that the immigration judge’s denial of his right to appeal also prejudiced him. We agree, and therefore affirm the dismissal of Fernandez Sanchez’s indictment.

. . . .

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

To me, it sounds like the 4th Circuit having “buyer’s remorse” about their questionable decision in United States v. Herrera-Pagoada, There, the court found that an IJ’s erroneous failure to advise a respondent of the availability of pre-hearing voluntary departure (“VD”)  was not a constitutional violation because there was no constitutional right to be advised of potential relief from deportation, even though a DOJ regulation required it! Huh?

But, here the court finds that the IJ’s improper failure to advise of the availability of prehearing VD combined with his failure to advise of appeal rights WAS a due process violation. Why? Because, if properly advised, the individual probably would have appealed, been successful, received a remand from the BIA, and then received VD from the IJ, thus avoiding deportation. Huh? 

The problem here is that as currently staffed and operated by the Executive, EOIR is one “walking, talking violation of due process.” If Congress won’t solve the problem by enacting a long overdue Article I Immigration Court, then the Article IIIs need to “take the bull by the horns!” 

They should place this entire, festering conflict of interest, and hotbed of substandard quasi-judicial performance OUT of the control of the nation’s Chief Prosecutor, the AG. Until Congress acts to establish a constitutionally compliant system, EOIR should be placed under the supervision of an independent, expert “Special Master” qualified to fairly administer one of the nation’s most important, yet totally dysfunctional and highly unfair, court systems!

Interestingly, much of the court’s reasoning is based on the premise that on appeal the BIA would have corrected the IJ’s clear errors. But, as those who follow Federal immigration litigation are aware, the BIA’s “assembly line” appellate review, sensitivity to due process, and willingness to apply precedent favoring the respondent are often as slipshod and driven by undue haste as this 4-minute IJ hearing. 

Ironically, the IJ who mishandled this case is generally regarded as one of the “best in the business” — experienced, knowledgeable, fair, and sensitive to the rights of individuals coming before him. So, while this screw-up might be an aberration for this particular IJ, it’s clearly not a systemic rarity. 

In the haste makes waste, hopelessly backlogged, “anything goes” “world of EOIR” goofs like this are likely happening every hour of every day that the Immigration Courts are in session. But, since many folks are unrepresented or underrepresented, some mistakes are simply buried or deported.

Indeed, I had my share of 4-minute (or less) “hearings” during 13 years on the bench. Inevitably, I made some mistakes — some were caught, some inevitably weren’t. Hopefully, I learned from the ones brought to my attention. With “Master Calendars” often consisting of upwards of 50 cases in a 3-hour “slot” in a courtroom overflowing with humanity — and the need to provide stressed out interpreters court clerks, counsel, and me with suitable “breaks” — you can do the math!

Once I did a 100 case Televideo Master in Ohio where 1) I had no files; 2) the ICE ACC who had been detailed to the hearing location had no files; and 3) the interpreter spoke a language other than the one of the majority of the respondents on the calendar. Afterwards, I told the then Chief IJ that I had spent the day in “Clown Court!’” 🤡 He was not amused.

To quote my friend and former colleague retired Judge Wayne Iskra: “This system is broken!”  “Numbers,” “final orders,” “expediency,” and “productivity” to satisfy bureaucratic enforcement goals or to support Government myths about immigrants drive the EOIR system. Due process, fundamental fairness, compliance with the statute and regulations, and meaningful analysis are not this dysfunctional system’s focus. But, they must be!

Clearly, “dedicated dockets,” regulatory time frames, form orders, remote “Adjudication Centers,” and other “designed to fail” gimmicks tried under Garland are NOT going to solve the chronic quality-control and due process problems plaguing EOIR!

In other words, EOIR as currently constituted and “operated” is a “due process sham!” The 4th Circuit and other Article IIIs need to “dig deeper” into the glaring constitutional and professional quality problems plaguing Garland’s broken Immigration Courts! If neither he nor Congress will solve the problems, somebody must!

🇺🇸 Due Process Forever!

PWS

08-26-22

😰IMMIGRATION 101: SUMMER GRADES POSTED: GARLAND, BIA, & OIL GET “F’s” FROM 1ST (FRENTESCU TEST) & 3RD (CATEGORICAL TEST) CIRS! — Meanwhile, NDPA Litigators Get “A+’s”

Dunce Cap
With lives on the line, the BIA’s performance leaves something to be desired.
PHOTO: Creative Commons

From Dor v. Garland, 1st Cir.

http://media.ca1.uscourts.gov/pdf.opinions/20-1694P-01A.pdf

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.

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

From Vurimindi v. AG, 3rd Cir.

https://www2.ca3.uscourts.gov/opinarch/191848p.pdf

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.

DEAN’S LIST: A+‘s go to DLA Piper’s:

Courtney Gilligan Saleski

https://www.dlapiper.com/en/us/people/s/saleski-courtney-gilligan/

Courtney Gilligan Saleski
Courtney Gilligan Saleski
Partner
DLA Piper

and

Rachel A.H. Horton

https://www.dlapiper.com/en/us/people/h/horton-rachel/

Rachel A.H. Horton
Rachel A.H. Horton
Associate
DLA Piper

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

Interestingly, the BIA’s defective decision in Dor involved improper reliance on police reports. This comes just as a new NIJC report shows how improper reliance by EOIR on police reports means that “racism and inequities in the criminal legal system and policing carry over into the immigration system.” https://default.salsalabs.org/T59538212-844f-4d6d-ade1-0428b5eef400/e9c83407-de3b-4bcf-a318-704cbcd599a2. 

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! See https://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?

Alfred E. Neumann

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

🇺🇸 Due Process Forever!

PWS

08-24-22

🇺🇸⚖️🗽AN AMERICAN LEGAL HERO LEAVES BEHIND LEGACY OF COURAGE, SCHOLARSHIP, INNOVATION, COMPASSION: A HEARTFELT TRIBUTE TO HON. WILLIAM VAN WYKE BY HON. “SIR JEFFREY” CHASE!

Judge William Van Wyke
Judge William Van Wyke (D – Aug. 14, 2022)
U.S. Immigration Judge (Ret.)
Member Round Table of Former Immigration Judges
“A True Due Process Visionary”
PHOTO: the world.com

 

 

https://www.jeffreyschase.com/blog/2022/8/22/william-van-wyke-2

William Van Wyke

On August 14, the immigration law community lost a true giant. William Van Wyke, a former Immigration Judge, advocate, and scholar unexpectedly passed away.

How does one capture William’s essence? I’m going to attempt to do so through his own words (in bold), taken from both public sources and emails he wrote to his former Immigration Judge colleagues in conversations after his retirement from the bench.

“The fearful and crude ideas get put into practice by reflex; compassionate and thoughtful ones wait around until everyone agrees with them. – William” – April 1, 2021 email.

My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

Prior to authoring that article, WIlliam had spent nine years pioneering the representation of Central American refugees before the Immigration Courts in Washington and Baltimore, beginning this work when the 1980 Refugee Act was still new.

“’We have a law that was intended to be generous, that, when it is well understood, would cover many cases — many, many more cases — than those that are granted,’ Van Wyke says.” –  Quote in Eyder Peralta, “Why A Single Question Decides The Fates Of Central American Migrants,” NPR, Feb. 25, 2016.

In one 1990 case in which his clients were denied asylum, William succeeded in persuading the Immigration Judge to rule that those clients could not be deported to their native El Salvador as long as the civil war continued there. William achieved this result by arguing customary international law, and analogizing a refugee’s flight from war to the customary practice of allowing a ship in distress the right to enter a port without authorization. The Washington Post quoted an immigration law authority who called the decision “one of the most impressive victories ever in an immigration court.” The decision was the subject of a law review article the following year.3

“My own experience is that people with anti-immigrant sentiments, whether in INS, DHS, EOIR or anywhere else, have always cringed at the idea of an IJ giving an unrepresented person sufficient information to make genuinely informed decisions… I remember a talk by Janet Reno at one of our conferences 20 years ago when she mentioned ‘compassion’ 12 times — I counted them. But try to actually be compassionate in specific cases in a legally appropriate and consequential way and you’re accused of overstepping judicial bounds. Didn’t I know that compassion is supposed to be a decoration, not something that actually helps the people before us?”  – Email, Sept. 18, 2019

William’s appointment as an Immigration Judge in March, 1995 sent a message of hope to the immigration law community. On the bench, William maintained his methodical, detail-oriented approach.  Early in his career on the bench, William reported that the INS trial attorneys had given him the nickname “the Van Wyck Expressway,” a reference to the similarly named NYC roadway that most know from traveling to or from JFK Airport. When William pointed out to one of those INS attorneys that his courtroom actually moved quite slowly, the attorney responded: “So does the Van Wyck Expressway.”

While we were both on the bench, I heard that William had developed a highly unique seating plan for his courtroom, and asked him about it one day. He showed it to me, explaining in detail his deeply thought out reasoning for the placement of every chair in the room. I don’t remember the specifics so many years later, but it was a perfect example of the strong sense of responsibility WIlliam felt towards all who set foot in his courtroom.

That sense of responsibility became even more heightened when WIlliam transferred from the court in New York to what he used to call “plain old York,” meaning the detained immigration court in York, Pennsylvania, located inside of the York County Prison.4

In one case he heard there, a non-citizen sat in jail awaiting approval of a green card petition filed by his U.S. citizen wife that could have saved him from deportation. But approval of visa petitions is not something an immigration judge can do; that power lies with the same government agency that was seeking the non-citizen’s deportation (at the time, that was INS; it is now DHS). After continuing the case multiple times to allow for a decision on the visa petition, WIlliam was repeatedly informed by INS’s attorney that no action had been taken.  The INS attorney further refused to inquire as to when a decision might be expected, and insisted that rather than wait, the non-citizen should be ordered deported.

Although at the time such action required the consent of both parties, WIlliam took the bold step of administratively closing the case over the government’s objection, writing a detailed decision explaining the necessity of doing so under the facts presented.

Remarkably, rather than appeal William’s denial to the Board of Immigration Appeals, the INS attorney privately and most improperly contacted the Chief Immigration Judge by phone, who in turn improperly reopened the matter and placed it back on for hearing.

In a decision that should be required reading for all EOIR management, WIlliam fired back at both INS and his own higher-ups, stating that it would be a “manifest injustice” to deport the respondent “simply because INS has not performed its Congressionally-mandated adjudication in a timely fashion.”

Detailing the extensive efforts he had undertaken to get INS to adjudicate the visa petition, WIlliam further noted that “[t]he asymmetry of ordering one party, but asking, begging, pleading and cajoling the other party hearing after hearing without effect, can only diminish the court as an authoritative and independent arbiter in the public’s eyes.”

WIlliam took the INS and the Office of the Chief Immigration Judge to task for their unethical ex parte communication, and the latter’s unauthorized action in response to such conversation:

The Chief Immigration Judge is an administrative and policy officer without appellate or other legal authority to overrule the immigration judge’s procedural decisions in the case, see 8 CFR 3.9, 3.1(b), and ethical rules require the Chief Immigration Judge as well as immigration judges to refrain from taking action in a specific case following an ex parte communication about the case by one of the parties.

William further noted that his “decision to close the case temporarily was not a mere administrative one subject to OCIJ’s general direction, but a legal decision made as an integral part of the adjudicatory process in an individual case.” William cautioned that the private communication, which denied opposing counsel the right to be heard, protected INS from having to defend its position in an appeal to the BIA, thus giving

a procedural and tactical advantage to the INS by demonstrating to respondent, rightly or wrongly, that an INS call to the Office of the Chief Immigration Judge may be enough to undo what the immigration judge does in open court, while encouraging the INS to continue to seek results from the OCIJ privately that it might not be able to get from the BIA publicly.

William concluded:

Unable to establish or enforce the standards of conduct that this judge believes must apply, he will recuse himself from further consideration of the case. In the court’s view, only the OCIJ, which went beyond mere administrative action to direct a particular course of action in this case, is in a position to cure the appearance of impropriety its intervention has produced. The court will therefore refer this case back to the Chief Immigration Judge for whatever action he may deem fit and appropriate.

The extraordinary nature of the matter was reported in an article in the New York Times.5

In retirement, William was a member of our Round Table that filed an amicus brief in an important case in the U.S. Court of Appeals for the Second Circuit, Velasco-Lopez v. Decker.  The case challenged the practice of requiring a detained non-citizen to themself prove that they would not pose a flight risk or danger to the community in order to warrant their release from detention. In its precedent decision, the circuit court agreed that such burden should be borne by the government, and not the detainee.

I share here part of William’s response to the decision

In this decision, the important starting point is that due process applies to every person in their relation to the power of government. This principle humanizes immigrant “others” and shows that when Big Government (i.e. the kind that wields power in favor of the already rich and already powerful) treads on anyone, everyone’s rights are in jeopardy. The principles relevant in bond decisions –– having ties to our communities and not being a danger to others –– are strong values that most of us honor and share, whether recent immigrants or earlier-generation immigrants, and should make all of us resist limitations on our freedom by the coercive power of jailing people.

I don’t know if they still staple those little yellow cards with red print onto files of jailed immigrants that used to say, “RUSH: detained at government expense.”  Years ago when I was at York I wrote to… EOIR General Counsel, to ask if we couldn’t change those cards to be more humane, to say, “RUSH: person deprived of liberty,” or at least more neutral: “person deprived of liberty at government expense.” A change, of course, was “unnecessary” because everyone already knew the immigrants’ hardship, even if our boss’s reminder focused only on the government’s. Maybe they’ll change the cards now to remind adjudicators: “Rush: this person should not be deprived of freedom unless the government quickly decides he/she lacks any community ties AND is dangerous.” I won’t hold my breath, though.

I will conclude by saying that just recently, I set about researching a narrow legal issue that I would imagine most Immigration Judges would resolve in a few pages at most. I came across a decision that William had written on the topic shortly before his retirement from the bench that was exactly what I was looking for. It was 39 pages single spaced, and of course, absolutely brilliant.

On behalf of your fellow judges, and of all who have appeared in Immigration Court, thank you, William, for being you, for never lowering your standards. You restored the hope of so many in the power of law to make a positive difference in people’s lives, and so often showed that there was a way forward when we thought there was none. You are already greatly missed.

Notes:

  1. William Van Wyke, “A New Perspective on Well-Founded Fear,” 1992-93 Immigration & Nationality Handbook(AILA, 1992) at 497.
  2. Carlos Sanchez, “Lawyer’s Persistence Helps Reshape Immigration Law,” Washington Post, March 31, 1991.
  3. Cookson, II, Charles W. “In Re Santos: Extending the Right of Non-Return to Refugees of Civil Wars.” American University International Law Review 7, no. 1 (1991): 145-171.
  4. The York Immigration Court was closed on July 31, 2021.
  5. Eric Schmitt, “Two Judges Do Battle in an Immigration Case,” NYT, June 21, 2001.
  6. 978 F.3d 842 (2d Cir. 2020). The author recognized the outstanding representation in this matter by the petitioner’s counsel, Julie Dona (who argued the case) and Aadhithi Padmanabhan of the Legal Aid Society, and to Souvik Saha of Wilmer Hale for his remarkable assistance in drafting our amicus brief.

AUGUST 22, 2022

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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

My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

. . . .

William spent those years trying to persuade the government of the proper application of the new law.  However, INS and the newly created EOIR remained largely mired in the Cold War-influenced view of asylum that preceded the 1980 changes. And under that Cold War approach, Central Americans fleeing pro-U.S. regimes had nearly no chance to obtain asylum

A 1991 Washington Post article documented how this institutional resistance only caused William to be more persistent and creative in his legal approach.2

Kind of says it all about the entrenched, continuing, institutional resistance at EOIR to correct, generous, fair, practical interpretations of asylum law and other immigration and human rights laws! That’s what helps generate uncontrollable backlogs and brings our entire justice system into disrepute! Worst of all, it threatens the lives of those denied justice by its legal misinterpretations and mis-applications of the law!

What does it say about an institution that no longer touts or actively pursues its noble one-time-vision of “through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all?” Ironically, William’s life and achievements embody that now-defunct “EOIR vision.” But, nobody in “management” actually acknowledged that during his often-difficult tenure there.

Encouragingly, a number of Garland’s recent judicial appointments are distinguished, expert, widely respected “practical scholars” in the “Van Wyke mold.” Unfortunately, it’s going to take immediate and dramatic changes in moribund, uninspired EOIR leadership and in the “any reason to deny” BIA to overcome the “Cold War mentality,” anti-immigrant bias, assembly line procedures, “institutionalized go along to get alongism,” and unacceptably poor performance of EOIR. Right now, it’s still drag on our entire justice system that puts the future of our nation at risk!

No wonder we already miss William, his outspoken courage, and his wisdom so much. There is a void in our justice system right now where fierce due-process-focused, creative, humane, practical scholars should be leading the way in our institutions of justice! 

It’s up to the “new generation” of the NDPA to break down the walls of official resistance by Garland and other short-sighted bureaucrats and politicos who lack the vision to make racial justice, immigrant justice, and equal justice for all realities rather than disingenuous unfulfilled rhetoric! Guys, your lives and those of your descendants might depend on it! So, dial up the pressure on the intransigents, many of them in the Biden Administration you helped to elect and who expect your support and votes again this Fall!

🇺🇸 Due Process Forever!

PWS

08-24-22

🤯 AS EOIR SINKS INTO THE SEA OF CHAOS & INJUSTICE, GARLAND’S SOLUTION: MORE UNNEEDED BUREAUCRACY!

Hole in the head
This is how much EOIR and its long-suffering stakeholders need a “Chief of the Immigration Law Division” at EOIR!
PHOTO: EOI Teacher @ Twitter

https://www.justice.gov/legal-careers/job/supervisory-attorney-advisor-chief-immigration-law-division

Duties include but are not limited to the following:

  • Plan and direct general legal activities of the Agency with the objective of assuring that all actions taken are in accordance with law and regulation with special emphasis on assuring that actions taken conform to the basic principles of law.
  • Provide interpretation of immigration provisions, laws, and regulations to all segments of the agency.
  • Propose the development of policies and procedures in response to legal cases or problems that have the effect of substantially broadening or restricting the activities of the agency.
  • Advise the Director/Deputy and staff on the legal implications of proposed and newly enacted laws, regulations and policies that will have an impact on the operation of the agency and keeps abreast of current decisions of the courts.
  • Direct professional legal staff in the development, documentation, and operation of both internal processes and administrative/technical controls.
  • Supervise staff in the formulation and direction of proactive, time-sensitive services and/or guidance to EOIR components, unique needs of senior management and responsiveness to the Department and other government or regulatory agencies.

Qualifications:

In order to qualify for the position, you must meet the following minimum qualifications:

  • Education: Applicants must possess an LL.B. or a J.D. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)

AND

  • Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)

AND

Required Experience:

For GS-15: Applicants must have four (4) full years (48 months) of post J.D. or LL.B professional legal experience. Qualifying professional legal experience includes: Direct professional legal staff in the development, documentation, and operation of both internal processes and administrative/technical controls; Advise Senior Management and staff on the legal implications of proposed and newly enacted laws, regulations and policies that will have an impact on the operation of the agency and keeps abreast of current decisions of the courts; and Plan and direct general legal activities of the Agency with the objective of assuring that all actions taken are in accordance with law and regulation with special emphasis on assuring that actions taken conform to the basic principles of law.

(Your resume must CLEARLY demonstrate this experience)

Preferred Experience:

The ideal candidate will have experience with the following:

  • Providing technical and administrative supervision over attorneys and professional staff within an organization.
  • Planning and assigning work to subordinate attorneys based on priorities and difficulty of the assignment.
  • Providing input and advice to Senior Officials on policy decisions.
  • Coordinating with other government offices and/or agencies on legal matters.

NOTE: Qualifying experience is calculated only after receipt of J.D. or LL.B.

IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE.

Salary:

($148,484 – $176,300 per year.

Travel:

Occasional travel

Application Process:

To Apply for this position, please click the below link to access and apply to the vacancy announcement via USA Jobs USAJOBS – Job Announcement . Please read the announcement thoroughly. You Must Submit a complete application package by 11:59PM (EST) on 9/02/2022, the closing date of the announcement.

Applicants should familiarize themselves and comply with the relevant rules of professional conduct regarding any possible conflicts of interest in connection with their applications. In particular, please notify this Office if you currently represent clients or adjudicate matters in which this Office is involved and/or you have a family member who is representing clients or adjudicating matters in which this Office is involved so that we can evaluate any potential conflict of interest or disqualification issue that may need to be addressed under those circumstances.

Application Deadline:

Tuesday, September 6, 2022

Relocation Expenses:

Not authorized

Number of Positions:

1

Updated August 23, 2022

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The ship is rudderless and sinking! Many of the sailors are inept or think they are working for a different Navy! The solution: More Lt. Commanders on deck, each doing someone else’s job and giving random orders, to add to the confusion and disorder!

Let me be clear: EOIR and its long-suffering “customers” and “stakeholders” need this superfluous position like a hole in the head! Perhaps less! This looks like “EOIR imitating the DHS bureaucracy” that it is supposed to be treating as a “party,” not a “role model!”

The “Office of Policy” — totally unnecessary and inconsistent with the mission of a quasi-judicial court system — is a serious boondoggle created by the last Administration. Eliminating it and redeploying its wasted resources into competent, expert quasi-judicial decision making should have been “Day One Stuff” for Garland. But it wasn’t!

EOIR needs better, expert judges, who know immigration and human rights laws, and are unswervingly committed to due process, fundamental fairness, and best practices! It also needs a “lean team” of well qualified judicial administrators to recruit, hire, train, and support judges and court staff!

Incredibly, most of this PD sounds like it’s right out of the PDs for BIA Chair, BIA Member, CIJ, Director, Deputy Director, or General Counsel. Get folks who can do those jobs and eliminate the Office of Policy and the other “non-operational bureaucratic fat” in Falls Church!

Does the Supreme Court have a “U.S. Law Division?” How about the D.C. Circuit where Garland once served? What on earth is Garland doing with this wasteful nonsense!

For Pete’s sake, the BIA IS the “Immigration Law Division!” If, as I maintain, most of the current Appellate Judges are not capable of performing those functions competently and in accordance with due process and fundamental fairness, then get better judges in there! Now!

Sure, it’s not the “popular solution” within the self-perpetuating bureaucracy. But, it’s the right one!

Stop the unnecessary proliferation of inept bureaucrats at EOIR! “Hey, hey, Ho, ho, the EOIR Clown Show has got to go!” Throwing more “ringmasters” into this circus is NOT the answer!

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

DOJ and Director Neal should be hauled before an Oversight Committee to justify their continuing bureaucratic nonsense in the face of abject “mission failure!” Not going to happen. But, it should! Honestly!

🇺🇸 Due Process Forever!

PWS

08-24-22

💨 FROM THE ROCKIES & THE HIGH PLAINS, THE WINDS OF TRUTH BLOW AWAY THE BS & SHOW HOW GARLAND’S BIA & THEIR SCOFFLAW INTERPRETATIONS HAVE BUILT BACKLOGS — “This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in,” says 10th Cir. in Estrada-Corona v. Garland!

Kangaroos
It’s easy guys, we just do what DHS Enforcement and our political bosses want and we can keep hopping around forever! Backlogs! Ha, the bigger the bigger they get, the more “secure” our jobs!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

Estrada-Cardona v. Garland

“The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. … This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in. … After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong. … Because Congress unambiguously replaced the final-order rule with the stop-time rule, the BIA’s application of the final-order rule was legal error. Petitioner continued to accrue continuous physical presence after the immigration judge issued the order to voluntarily depart. … [W]e hold that because the BIA seems to have considered change-in-the-law equitable tolling arguments before, the BIA abused its discretion in this case by failing to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” … We cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion. …  On remand, the Government is free to argue that Petitioner should not be granted sua sponte reopening or equitable tolling. This opinion is expressly limited to two conclusions. First, the BIA’s application of the final-order rule was legal error. Second, the BIA’s explanations for denying sua sponte reopening and equitable tolling constituted, as a procedural matter, an abuse of discretion. For the reasons stated herein, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion.”

[Hats way off to Jennifer M. Smith and Mark Barr!]

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“For years, if not decades, the Government sent aliens “notices to appear” which failed to include all the information required by § 1229(a)—like the “time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). For countless aliens, the only obstacle to being eligible for cancellation of removal was the Government’s position that a time-and-place-to-be-set notice to appear still triggers the stop-time rule. In Pereira, the Supreme Court rejected the Government’s atextual interpretation and held a “putative notice to appear that fails to designate the specific time or place of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. In one fell swoop, the Supreme Court cleared the way for many aliens, like Petitioner, to seek cancellation of removal.

But the Government quickly erected a new hurdle.”

The BIA could and should have prevented this debacle by insisting from the git go that the statute (“the law”) be followed by DHS and EOIR. Instead, at the behest of DHS, and perhaps to prevent tens of thousands of long-term residents who had received statutorily defective notices from seeking relief, the BIA misinterpreted the statute time after time. 

The real stupidity here is that the requirement the BIA was pretzeling itself to avoid was hardly “rocket science” or burdensome: Serve a notice containing the actual date, time, and place of the hearing! One might ask what purpose is served by a so-called “Notice to Appear” that doesn’t notify the individual of where and when to appear?

Moreover, when the BIA started issuing their incorrect precedents, DHS and EOIR had a then-existing system — called “interactive scheduling” — that would have complied with the statute. The problem was that the “powers that be” at DOJ, EOIR, and DHS consciously decided NOT to use that system. 

The apparent reason was the belief that complying with the law might have interfered with DHS arbitrarily filling the Immigration Courts with large “numbers” of cases to meet various enforcement “priorities” set from “on high.” Rather than doing its job, the BIA chose time and again to “go along to get along” with this nonsense!

Over and over, EOIR lets bogus DHS or Administration “enforcement priorities” or “improperly using the legal system as a deterrent” subvert due process, fundamental fairness, best interpretations, and practical solutions!

And, although Biden and Harris campaigned on a platform of bringing the rule of law and rationality back to immigration, the absurdity and illegality continues under Garland. He even sent OIL in to waste the time of the Article IIIs by mounting essentially frivolous defenses to the BIA’s malfeasance. 

Perhaps worst of all, in addition to being denied timely justice, individuals and their lawyers dealing with Garland’s dysfunctional EOIR often are falsely blamed for causing the backlogs that are the primary result of DHS/EOIR incompetence and political meddling by unqualified bureaucrats. The latter don’t understand what really happens in Immigration Court and how to properly, fairly, and efficiently administer such a large and important court system.

The backlogs will continue to grow and the US justice system will crater because of bad immigration decisions generating skyrocketing litigation. Garland must replace the BIA with real expert appellate judges committed to fair, humane, and reasonable interpretations of immigration and human rights laws — without regard to whether those correct interpretations will be “career enhancing” or “career preserving.” In other words, judges who put justice before personal or institutional “survival.” Competent, expert, independent-minded judicial administrators with the guts to keep DOJ and DHS bureaucratic meddlers “at arm’s length” are also required.

Folks who could do the job are out here. But, that’s the problem! They belong in the key judicial judicial and administrative positions at EOIR where they can put any end to the due-process denying, backlog building dysfunction.

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Everyone committed to the future of American justice should be asking themselves why Garland hasn’t recruited and hired the right “Team Due Process” for EOIR! American justice can’t afford more of Garland’s inept, “go along to get along,” “afraid to say no to DHS enforcement” BIA and the rest of the EOIR “Deadly Clown Show” largely left over from past, failed Administrations!

🇺🇸 Due Process Forever!

PWS

08-20-21

⚖️🗽 RAPPAPORT & STOCK URGE ACTION ON AFGHAN REFUGEES!

Nolan Rappaport
Nolan Rappaport
Contributor, The Hill
Margaret Stock, Esquire
Margaret Stock, Esquire
Anchorage, Alaska
PHOTO: Law firm

Nolan sends this summary of his latest on The Hill:

Afghans who helped us deserve better immigration treatment

Nolan Rappaport, opinion contributor

 

 

As the Afghan government and military fell to the Taliban after U.S. troops were withdrawn from Afghanistan, the U.S. hastily evacuated American citizens and 76,000 Afghans who had helped the U.S. in its 20-year war against the Taliban.

 

It is a year later now, and most of the Afghan evacuees still have temporary immigration status, which means that they may be subject to removal when their status expires. This isn’t right.  We should be taking better care of them.

 

It is more than just an obligation to people who put themselves in peril to help the United States.

 

According to Margaret D. Stock, a retired military officer, “Correcting for this inaction is a matter of national security — in future conflicts, why would anyone risk their lives by serving alongside our soldiers or providing critical translation services if the U.S. can’t keep our promises to them when we depart?”

 

It wouldn’t be taking this long to meet the needs of the Afghans if our immigration system weren’t overwhelmed to the point of being dysfunctional.

 

Parole

 

The evacuees who did not have entry documents had to request humanitarian parole, which permits undocumented migrants to be admitted to the United States temporarily for urgent humanitarian or significant public benefit reasons.

 

Approximately 70,192 of them were paroled into the United States between July 30, 2021, and Nov. 15, 2021.

 

Permanent status

 

Congress has enacted a series of legislative provisions which enable certain Afghan nationals to become lawful permanent residents (LPRs) on the basis of a Special Immigrant Visa (SIV).

 

Section 1059 of the National Defense Authorization Act for fiscal 2006, authorizes giving SIVs to Afghans who worked with the U.S. Armed Forces or under Chief of Mission (COM) authority as a translator or an interpreter for at least a year.

 

To be eligible for this special immigrant classification, the principal applicant must obtain a favorable written recommendation from the COM or a general or flag officer in the relevant Armed Forces unit.

 

Afghans who were employed by or on behalf of the U.S. government or the International security Assistance Force in Afghanistan may be eligible for SIV status under section 602(b) of the Afghan Allies Protection Act of 2009.

 

Roadblock

As of July 18, 2022, there were 74,274 principal applicants in the SIV pipeline. This number does not include spouses and children. And the applications have to be processed by USCIS, which is experiencing a backlog crisis.

 

Read more at https://thehill.com/opinion/immigration/3605096-afghans-who-helped-us-deserve-better-immigration-treatment/

 

Published originally on The Hill.

 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him athttps://www.blogger.com/blog/posts/2306123393080132994

 

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Read Nolan’s full op-ed at the link.

When experts like Nolan and Margaret are saying the same thing, everyone should listen and act accordingly!

In addition to fair and equitable treatment for our allies, we must resume and expand fair and humane treatment for all refugees, including, most important, those seeking legal refuge at our borders. Many of them actually come from broken countries where the the U.S. has left a “large footprint,” like Haiti and Latin America. 

It is long past time to make the legal requirement set forth in the Refugee Act of 1980 — any individual in the US or arriving at our border may apply for asylum “irrespective of status” — a reality rather than a cruel hoax. Contrary to some disgracefully wrong-headed court decisions, this statutory requirement implicitly requires that opportunity to be in full compliance with due process. 

Otherwise, to state the obvious, it’s no opportunity at all — just a legal charade. Unfortunately, that is what much of our broken, dysfunctional, and unjust asylum and refugee systems look like now!

🇺🇸 Due Process Forever!

PWS

08-19-22

⚖️ NDPA STALWART MICHAEL MEHR BEATS DOWN MATTER OF CORDERO-GARCIA (Obstruction of Justice) IN 9TH — Dissenting Trump Judge VanDyke Goes Ballistic — Accuses Colleagues Of “Playing Dirty” By Occasionally Ruling In Favor Of Individuals In Immigration Cases!

 

Here’s a report from Nate Raymond @ Reuters:

https://www.reuters.com/legal/government/trump-appointed-judge-says-9th-circuit-playing-dirty-prevent-deportations-2022-08-15/

(Reuters) – A conservative judge appointed by former President Donald Trump on Monday accused his colleagues on the 9th U.S. Circuit Court of Appeals of playing “dirty” in a “trainwreck” of rulings to prevent immigrants from being deported.

U.S. Circuit Judge Lawrence VanDyke’s criticism came in a dissent to a 2-1 decision holding a Mexican native’s California conviction for dissuading a witness from reporting a crime was not a deportable offense under federal immigration law.

VanDyke, who has become known for a string of dissents since joining the liberal-leaning court in 2020, noted he had not been shy in criticizing the San Francisco-based court’s “abysmal and indefensible immigration precedents.”

He said the 9th Circuit for more than a decade has been “doing everything in our power (and much not) to upset” the Board of Immigration Appeals’ “reasonable” interpretation of what constitutes an offense related to obstruction of justice.

The BIA in this case had concluded Fernando Cordero-Garcia committed such an offense after he was convicted in California of sexual battery without restraint, sexual exploitation by a psychotherapist and dissuading a witness from reporting a crime.

“My colleagues in the majority should be embarrassed,” VanDyke wrote. “Perhaps not for their wrong decision today–to err is human, after all, even for those in robes. But they should be troubled by our court’s jaw-dropping, always-increasing, epic collection of immigration gaffes.”Cordero-Garcia’s lawyer, Michael Mehr, declined to comment.

Cordero-Garcia, who entered the country in 1965 as a lawful permanent resident, was a psychologist for the County of Santa Barbara Alcohol, Drug and Mental Health Services department who prosecutors said sexually assaulted patients, the ruling said.

Two appointees of Democratic presidents — U.S. District Judge Barry Moskowitz, a visiting judge on the court, and U.S. Circuit Judge Andrew Hurwitz — ruled for Cordero-Garcia in overturning the BIA’s decision on the obstruction offense.

Moskowitz, writing for the majority, said he was not writing on a “clean slate,” as the 9th Circuit in 2020 ruled an “obstruction of justice” offense must be connected to ongoing or pending criminal proceedings.

The California law Cordero-Garcia was convicted under, by contrast, does not require any connection to an ongoing or pending proceeding or investigation, making it “not an appropriate comparator” to obstruction under federal law.

VanDyke, though, said the 9th Circuit’s approach had created a “lopsided circuit-split,” with the majority acknowledging its ruling ran counter to decisions by the 1st and 4th U.S. Circuit Courts of Appeals.

The case is Cordero-Garcia v. Garland, 9th U.S. Circuit Court of Appeals, No. 19-72779.

For Cordero-Garcia: Michael Mehr of Mehr & Soto

For the United States: Rebecca Hoffberg Phillips of the U.S. Department of Justice

Read more:

Trump-appointed judge blasts 9th Circuit’s ’embarrassing’ immigration rulings

In barbed dissents, Trump appointees call

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Here’s a link to Matter of Garcia-Cordero, 27 I&N Dec. 652 (BIA 2019) which was reversed by the 9th Circuit:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwip-puUns75AhUlk4kEHaQXAisQFnoECAMQAw&url=https%3A%2F%2Fwww.justice.gov%2Feoir%2Fpage%2Ffile%2F1210991%2Fdownload&usg=AOvVaw2IVnTOUmhzqK0ppatf4rr7

While VanDyke has been eager to rip into his colleagues for critically reviewing BIA rulings, rather than just “rubber stamp deferring,” he is no stranger to controversy. He received the coveted “not qualified to serve” rating from the ABA and has been characterized as an “unqualified hack” by Joe Patrice over at abovethelaw.com.  https://abovethelaw.com/2021/12/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents/.

Interestingly, a chunk of the dissent is dedicated to showing that Mr. Cordero-Garcia is a louse. However, that doesn’t seem to have much to do with the legal application of the “categorical test” to his crime in the immigration context. For all its difficulties, Congress was well aware that courts had historically applied the “categorical test” as opposed to the “sounds like a bad guy” approach when they enacted the statutory language in question.

Curiously, VanDyke castigates his majority colleagues for “result oriented” decision making. But it seems highly unlikely that either District Judge Barry Ted Moskowitz, who wrote the opinion, or Circuit Judge Andrew Hurwitz would have chosen Mr. Cordero-Garcia’s situation as one to “throw out a lifeline.”

What’s more likely is that they fairly applied controlling Circuit precedent notwithstanding the highly unsympathetic individual involved. By contrast, critics have characterized VanDyke as an ideologue — driven by a far-right agenda — whose main focus on the bench has been “writing vitriolic Town Hall editorials to publish in F.4th.” Id.

From a due process standpoint, one of the most severe problems undermining our entire justice system today is the disturbingly poor performance of the BIA which often functions as a “rubber stamp” on incorrect anti-immigrant decisions by Immigration Judges, many of them appointed during the Trump Administration with questionable credentials, at best. That’s when the BIA isn’t busy serving as a “shill” for DHS Enforcement — often bending the law or going out of their way to sustain ICE appeals from correct decisions below that grant relief or benefit individuals. BIA precedents favorable to asylum seekers and other migrants are few and far between — despite an obvious lack of immigration and human rights expertise among many Trump appointees to the immigration bench.

The problem is compounded when reviewing Circuit Courts ignore the glaring Constitutional conflict of having a “court” that is “owned” by an enforcement agency (and was blatantly “weaponized” against migrants by Sessions and Barr) and the poor quality decision making, lack of scholarship, and overt bias that plagues EOIR. “Rubber stamp deference” to BIA decisions that do not deserve it is a systemic problem for the Article IIIs, actively encouraged by the Supremes judge-created Chevron and Brand X doctrines of undue deference. From this perspective, VanDyke and many (not all) of his Trump colleagues are a big part of the problem — not the solution!

Michael K. Mehr
Michael K. Mehr ESQ!
Senior Partner
Mehr & Soto LLP
Santa Cruz, CA
PHOTO: Website

Many congrats to Michael Mehr for vigorously and successfully litigating this complex issue in the 9th Circuit. It’s telling to compare the “quiet competence” of dedicated, expert advocates like Mehr with the “bombastic grandstanding” of VanDyke and others in the xenophobic right. Mehr and others in the NDPA have honed their their advocacy and scholarship skills by decades of giving a “voice” to those who otherwise are seldom “heard” by the powers that be.

Undoubtedly, given the circuit split, this eventually will end up at the Supremes. There, VanDyke’s fellow Trump appointees could well agree with him. But, that might be more reflective of problems with the composition of today’s Supremes than with the law. Stay tuned!

🇺🇸Due Process Forever!

PWS

08-17-22