"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Many thanks to all involved in this effort, particularly Richard Mark and the Pro Bono Team at Gibson Dunn. Will the DOJ go down for the third time on interrelated notice issues before the Supremes? What if the BIA followed the statute and held DHS fully accountable? What if due process, fundamental fairness, and best practices were the mission of EOIR? (Hint, they once were the “noble vision” of EOIR — trashed by Administrations of both parties.)
“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”
“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”
In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!
Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.
Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!
Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.
Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.
Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases?Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”
In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.
So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.
What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!
Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7
Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.
Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.
Here are a couple of excerpts from the decision that stood out to me:
“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”
There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.
Again, really great work and outcome! Thanks for sharing with all of us, Dan!
For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!
In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.
Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.
Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!
Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?
This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!
Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!
Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!
“Cristian Josue Diaz Ortiz, a native of El Salvador, seeks review of a decision by the Board of Immigration Appeals (“BIA”) affirming the denial of his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). The Immigration Judge’s (“IJ”) rejection of Diaz Ortiz’s petition for relief rested on an adverse credibility determination that primarily drew its support from a “Gang Assessment Database.” Flaws in that database, including its reliance on an erratic point system built on unsubstantiated inferences, compel us to conclude that the credibility judgment — and, in turn, the rejection of Diaz Ortiz’s request for relief — is not supported by substantial evidence. Accordingly, we grant the petition for review and remand for new immigration proceedings.”
Nkemchap Nelvis Takwi seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a removal order entered by an Immigration Judge (IJ) and denying his motion to remand. Exercising jurisdiction under 8 U.S.C. § 1252, we grant the petition for review. We remand this matter to the BIA because the IJ did not make an explicit adverse credibility determination, and the BIA did not afford Mr. Takwi the required rebuttable presumption of credibility.
Just for a good measure, the 9th Circuit also “busted” Garland’s BIA on an agfel issue:
“Petitioner Longinos Togonon, a native and citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 2013. In 2015, he was convicted of arson in violation of California Penal Code § 451(b) and sentenced to three years of imprisonment. In 2018, the Department of Homeland Security initiated removal proceedings against Togonon, alleging (as relevant for our purposes) that his arson offense qualifies as an “aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). The Immigration and Nationality Act defines the term “aggravated felony” to include “an offense described in” 18 U.S.C. § 844(i). 8 U.S.C. § 1101(a)(43)(E)(i). The Board of Immigration Appeals (BIA) held that a conviction under California Penal Code § 451(b) is an offense described in 18 U.S.C. § 844(i) and that Togonon is therefore subject to removal from the United States. Reviewing that decision de novo, see Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017), we conclude that the BIA erred in so holding. We accordingly grant Togonon’s petition for review.”
[Hats off to pro bono publico appointed counsel Matthew N. Ball (argued), Gibson Dunn & Crutcher LLP, Denver, Colorado; Paul J. Collins, Gibson Dunn & Crutcher LLP, Palo Alto, California; Andrew T. Brown and Matt Aiden Getz, Gibson Dunn & Crutcher LLP, Los Angeles, California!]
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The First Circuit decision was 4-3. It appears that the respondent’s lawyers, experts, and the majority did the careful, critical analysis that the BIA failed to perform. Even the dissenters, who got it wrong, appear to have spent more time and thought on this issue than Garland’s BIA.
The Tenth Circuit decision highlights “Basic Asylum 101” failures by both the IJ and the BIA. It’s not that hard to make a specific credibility finding in every case. I did it in every contested asylum case I heard over 13 years on the bench. Nor is applying the presumption of credibility on appeal profound.
I’ll concede that the 9th Circuit agfel issue was more tricky. But, the BIA’s practice of almost always going with the most expansive, pro-DHS interpretations of the agfel definition to maximize deportation and minimize relief doesn’t help.
“Due Process Forever!”Hmmm, where have I herd THAT before? Thanks, Dan, for all you do for the NDPA!
The American Immigration Council, the National Immigration Alliance, and the Law Professors, all representing a number of other organizations, also filed in behalf of the “good guys, truth, justice, and the American way,” in this case. The respondents are expertly represented by my friend and legendary immigration advocate Ira J. Kurzban, Esquire, of Kurzban Kurzban Tetzeli and Pratt PA.
Ira Kurzban ESQUIRE Legendary American Immigration Lawyer
One could not imagine a group MORE in need of thorough, critical, independent Article III judicial review of its decisions than today’s dysfunctional EOIR!There, potentially fatal errors have been “institutionalized” and even “normalized” as just another “unavoidable” consequence of the anti-immigrant, “haste makes waste,” “culture” that constantly places churning out removal orders above due process, fundamental fairness, and best practices!
Ironically, doubling the number of Immigration Judges, eliminating expertise as the main qualification in judicial selections, and forcing yet more “gimmicks” down their throats has actually nearly tripled the case backlog to an astounding 1.4 million cases, without producing any quantifiable benefit for anyone!
Obviously, it’s high time for Garland to “reinvent” EOIR with progressive experts, many with private sector Immigration Court experience, as judges and leaders at both the appellate and the trial level! Who knows what wonders might result from an emphasis on quality, humanity, and getting decisions correct in the first instance? Progressives are used to creatively solving difficult problems without stepping on anyone’s rights or diminishing anyone’s humanity! Those skills are in disturbingly short supply at today’s failed and failing EOIR! And, they aren’t exactly DOJ’s “long suit,” either.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
To The United States Court of Appeals For the Sixth Circuit _______________
BRIEF OF THIRTY-THREE FORMER IMMIGRATION JUDGES AND MEMBERS OF THE BOARD OF IMMIGRATION APPEALS
AS AMICI CURIAE
IN SUPPORT OF PETITIONER _______________
RICHARD W. MARK
Counsel of Record
AMER S. AHMED
TIMOTHY SUN
DORAN J. SATANOVE
GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue
New York, NY 10166 (212) 351-4000 rmark@gibsondunn.com
Counsel for Amici Curiae
INTEREST OF AMICI CURIAE
1
1
Amici curiae are thirty-three former immigration judges and members of the Board of Immigration Ap- peals (“BIA” or “Board”).2
Amici curiae have dedicated their careers to the immigration court system and to upholding the immi gration laws of the United States. Each is intimately familiar with the functioning of immigration courts and is invested in improving the fairness and effi- ciency of the United States immigration scheme. Amici curiae’s extensive experience adjudicating im- migration cases provides a unique perspective on the procedures and practicalities of immigration proceed- ings.
SUMMARY OF ARGUMENT
The straightforward question this case presents is one of enormous practical significance: Must the ini- tial written notice served on noncitizens to commence their removal proceedings provide—in one docu- ment—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the requirements of 8 U.S.C. § 1229(a), or does the statute allow the govern- ment to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, some containing misinformation, and
1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by coun- sel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.
2 The appendix provides a complete list of signatories.
2
none of which alone contains all of the statutorily re- quired information?
Reversing the Sixth Circuit and holding that § 1229(a)’s requirements must be included in a single document will greatly reduce the procedural and bu- reaucratic errors attendant in a two-step process that detrimentally impact thousands of noncitizens law- fully seeking to remain in this country.
I. For noncitizens applying for cancellation of re- moval, service of a valid “notice to appear” under § 1229(a) triggers the so-called “stop-time” rule, which terminates the period of continuous presence required for cancellation eligibility. See 8 U.S.C. §§ 1229b(d)(1), 1229b(a)(2), 1229b(b)(1)(A). Separately but relatedly, for noncitizens ordered removed in ab- sentia, whether that “severe” penalty, Pereira v. Ses- sions, 138 S. Ct. 2105, 2111 (2018), is proper depends on whether the notice served on the noncitizen satis- fied the requirements of §1229(a). 8 U.S.C. § 1229a(b)(5)(A). This Court’s decision will thus touch not only those like Petitioner who are seeking cancel- lation of removal, but also those who may not even have been provided sufficient notice to appear for their removal hearings—and potentially severely punished as a result.
II. The Sixth Circuit’s ruling approves a two-step notice process that involves: (i) the Department of Homeland Security (“DHS”) serving on a noncitizen a putative notice to appear lacking time-and-place in- formation (or, perhaps worse, that includes fake time- and-place information), and (ii) only after that notice to appear is filed and docketed with the immigration court, the immigration court separately sending a “no- tice of hearing” supplying the time-and-place infor- mation to the noncitizen.
3
Under this two-step process an initial notice lack- ing § 1229(a)’s time-and-place information languishes in a proverbial “No Man’s Land” until the notice is filed with an immigration court and entered into the court’s computer systems—a process that can take years. This delay increases the risk of procedural er- rors and lost filings, such as crucial Change of Address forms, which can result in noncitizens never receiving time-and-place information at all—potentially result- ing in wholly unjustified in absentia removal orders.
Sorting through those issues adds to immigration judges’ fact-finding burdens by requiring them to di- vert attention from the merits of a case to investigate collateral issues like whether time-and-place infor- mation was provided in a second document; whether that document was properly served; and whether a fil- ing like a Change of Address form was submitted but ultimately lost in “No Man’s Land.” When coupled with the pressure to complete cases—even if it means churning out in absentia removal orders without fully considering whether the noncitizen received adequate time-and-place notice—the result may be an increase in unwarranted removal orders.
These problems would be ameliorated if the gov- ernment simply provided the actual time-and-place information in a single document as required by § 1229(a).
III. Requiring DHS to work with the Executive Office of Immigration Review (“EOIR”) to obtain time- and-place information before serving a notice to ap- pear—and including such information in that docu- ment, as § 1229(a) and Pereira require—is practical and within the government’s capabilities.
4
A single-step notice process, consistent with this Court’s ruling in Pereira, furthers the due process ax- iom that a party charged to defend against a legal pro- ceeding must receive notice of the time and place of the proceeding and an opportunity to be heard.
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Read the complete brief, with better formatting, at the link!
Of course we couldn’t have done this without the amazing talent and assistance of Amer S. Ahmed and the rest of the “Pro Bono All-Star Team” 🎖🏆 @ Gibson Dunn! Just another example of the essential contribution of pro bono lawyers to literally saving our legal system that has been featured on “Courtside” this week!
Diaz-Reynoso v. Barr, 9th Cir., 08-07-20, published
SYNOPSIS BY COURT STAFF:
Immigration
Granting Sontos Diaz-Reynoso’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of her application for withholding of removal and protection under the Convention Against Torture, and remanding, the panel held that the Board misapplied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board and circuit precedent, in concluding that Diaz-Reynoso’s proposed social group comprised of “indigenous women in Guatemala who are unable to leave their relationship” was not cognizable, and that she failed to establish that the government of Guatemala would acquiesce in any possible torture.
The panel rejected Diaz-Reynoso’s contention that Matter of A-B- was arbitrary and capricious and therefore not entitled to Chevron deference. The panel concluded that, despite the general and descriptive observations set forth in the opinion, Matter of A-B- did not announce a new categorical exception to withholding of removal for victims of domestic violence or other private criminal activity, but rather it reaffirmed the Board’s existing framework for analyzing the cognizability of particular social groups, requiring that such determinations be individualized and conducted on a case-by-case basis.
The panel observed that the Board rejected Diaz- Reynoso’s proposed social group, with almost no analysis,
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
because it “suffered from the same circularity problem articulated by the Attorney General in Matter of A-B-.” The panel explained that in doing so, the Board appeared to misapprehend the scope of Matter of A-B- as forbidding any mention of feared harm within the delineation of a proposed social group. The panel concluded that this was error, explaining that Matter of A-B- did not announce a new rule concerning circularity, but instead merely reiterated the well- established principle that a particular social group must exist independently of the harm asserted. The panel recognized that a proposed social group may be deemed impermissibly circular if, after conducting the proper case-by-case analysis, the Board determines that the group is defined exclusively by the fact that its members have been subjected to harm. The panel explained, however, that a proposed social group is not impermissibly circular merely because the proposed group mentions harm.
The panel concluded that the Board also erred in assuming that domestic violence was the only reason Diaz- Reynoso was unable to leave her relationship, and in failing to conduct the rigorous case-by-case analysis required by Matter of A-B-. The panel therefore remanded Diaz- Reynoso’s withholding of removal claim for the Board to undertake the required analysis applying the correct framework.
Because the Board failed to discuss evidence that Diaz- Reynoso reported her husband’s abuse to authority figures in her village community, and the government conceded remand was warranted, the panel also remanded Diaz-Reynoso’s CAT claim for further consideration.
4 DIAZ-REYNOSO V. BARR
Concurring in the judgment in part and dissenting in part, Judge Bress agreed with remand of the CAT claim in light of the government’s concession, but disagreed with the majority’s conclusion that the Board misread Matter of A-B- in rejecting Diaz-Reynoso’s proposed social group. In Judge Bress’s view, Matter of A-B- held that a proposed group that incorporates harm within its definition is not a group that exists independently of the harm asserted in an application for asylum or statutory withholding of removal. Judge Bress wrote that substantial evidence supported the Board’s assessment that Diaz-Reynoso’s social group was defined exclusively by the harm suffered, and that the Board correctly applied Matter of A-B-, and the circularity rule, in rejecting Diaz-Reynoso’s proposed social group.
COUNSEL:
Gary A. Watt, Stephen Tollafield, and Tiffany J. Gates, Supervising Counsel; Shandyn H. Pierce and Hilda Kajbaf, Certified Law Students; Hastings Appellate Project, San Francisco, California; for Petitioner.
Joseph H. Hunt, Assistant Attorney General; John S. Hogan and Linda S. Wernery, Assistant Directors; Susan Bennett Green, Senior Litigation Counsel; Ashley Martin, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.S. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.
Richard W. Mark, Amer S. Ahmed, Grace E. Hart, and Cassarah M. Chu, Gibson Dunn & Crutcher LLP, New York New York, for Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals.
Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera, Deborah Anker, and Zachary A. Albun, Attorneys; Rosa Baum, Caya Simonsen, and Ana Sewell, Supervised Law Students; Harvard Immigration and Refugee Clinical Program, Cambridge, Massachusetts; for Amicus Curiae Harvard Immigration and Refugee Clinical Program.
Ana C. Reyes and Alexander J. Kasner, Williams & Connolly LLP, Washington, D.C.; Alice Farmer, United Nations High Commissioner for Refugees, Washington, D.C.; for Amicus Curiae United Nations High Commissioner for Refugees.
PANEL: Ronald M. Gould, Morgan Christen, and Daniel A. Bress, Circuit Judges.
OPINION BY: Judge Cristen
CONCURRING/DISSENTING OPINION: Judge Bress
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Just another example of how under this regime, EOIR’s perverted efforts to deny and deport, especially targeting female asylum seekers from the Northern Triangle for mistreatment and potential deportation to death, waste time and effort that could, in a wiser more just Administration, be used to reduce dockets and waiting times by ensuring that well-documented, deserving cases like this one are rapidly granted. EOIR’s biased performance also reeks of both anti-Latino racism and misogyny. Here we are, two decades into the 21st Century with our immigration “justice” system still being driven by invidious factors.
The Supremes’ majority may feign ignorance and or indifference to Trump’s and Miller’s overtly racist immigration agenda. But, those of us working in the field of immigration had it figured out long ago. It’s not rocket science! The Trumpsters make little or no real attempt to hide their scofflaw intent and invidious motives. It has, disgustingly, taken a concerted and disingenuous effort by the Supremes’ majority to sweep these unconstitutional attacks on humanity under the carpet.
That’s why we need “regime change” in both the Executive and the Senate which will lead to the appointment of better judges for a better America. Justices and judges who will ditch the institutionalized racism and misogyny and who will make equal justice for all under our Constitution a reality rather than the cruel hoax and “throwaway line” that it is today under GOP mis-governance.
Many thanks to our good friends and pro bono counsel at Gibson Dunn for the help in drafting our Amicus Brief!
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NASRALLAH v. BARR, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 18–1432. Argued March 2, 2020—Decided June 1, 2020
Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Conven- tion Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Ap- peals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal order is limited to constitutional and legal challenges. See §1252(a)(2)(D).
The Government sought to remove petitioner Nidal Khalid Nasral- lah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases.
Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. Pp. 5–13.
(a) Three interlocking statutes establish that CAT orders may be re- viewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re-
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NASRALLAH v. BARR Syllabus
moval” in a court of appeals, §1252(a)(1), and requires that all chal- lenges arising from the removal proceeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6.
(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” which in this context is defined as an order “con- cluding that the alien is deportable or ordering deportation,” §1101(a)(47)(A). Nor does a CAT order merge into a final order of re- moval, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal,” not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9.
(c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B).
The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersua- sive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orders of deportation” and so does not control here. Second, the Government argues that §1252(a)(1) sup- plies judicial review only of final orders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both FARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Gov- ernment’s assertion that Congress would not bar review of factual challenges to a removal order and allow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen removable are often not in serious dis- pute, while the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a
Cite as: 590 U. S. ____ (2020) 3 Syllabus
decision allowing factual review of CAT orders would lead to factual challenges to other orders in the courts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this deci- sion, and the question whether factual challenges to statutory with- holding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13.
762 Fed. Appx. 638, reversed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
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Score at least a modest victory for the NDPA over the “Deportation Railroad.”
Once again the Round Table 🛡⚔️ intervened with an amicus brief on the side of justice. Here’s a report from Judge Jeffrey Chase:
Hi All: Our Round Table filed an amicus brief in Nasrallah v. Barr. The Supreme Court issued it’s 7-2 decision in the case today, and we were on the winning side.
Kavanaugh wrote the decision, and was joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch. Thomas wrote a dissenting opinion that was joined by Alito.
The decision reverses the 11th Cir. and holds that federal courts may review factual issues as well as legal and constitutional issues in CAT appeals filed by noncitizens with criminal convictions falling under 8 C.F.R. section 1252(a)(2)(C).
Gibson Dunn assisted us with the drafting of the brief.
Best, Jeff
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round Table
And, of course, as Jeffrey notes, we couldn’t have done it without help from our pro bono heroes 🥇 over at Gibson Dunn! Many, many thanks!
Great that Justice Kavanaugh, Chief Justice Roberts, and Justice Gorsuch “saw the light” on this one! Not sure how often it will happen in the future, but gotta take what we can get.
Also, given the “haste makes waste” policies thrust on EOIR by the DOJ under Trump, and the significant number of fundamental legal and factual errors made by the BIA, judicial review is likely to turn up additional instances of substandard decision-making.
Richard W. Mark, Esquire Partner Gibson Dunn New YorkAmer S. Ahmed, Esquire Partner Gibson Dunn New YorkHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round Table
It is an axiom of due process that a party charged to defend against a legal proceeding must receive notice of the time and place of the proceeding and an opportunity to be heard. This Court’s ruling in Pereira v. Sessions, 138 S. Ct. 2105 (2018), reflects that axiom in the context of initiating removal proceedings by “notice to appear.”
This petition presents a straightforward question of enormous practical significance that has divided the five courts of appeals to have considered the issue: Must the initial written notice served on noncitizens to commence their removal proceedings provide—in
1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.
2 The appendix provides a complete list of signatories.
2
one document—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the require- ments of 8 U.S.C. § 1229(a), or does the statute allow the government to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, none of which alone contain all of the statutorily required information?
Resolution of this issue will affect thousands of people in the immigration system. For noncitizens applying for cancellation of removal, service of a valid “notice to appear” triggers the so-called “stop-time” rule, which terminates the period of continuous pres- ence required for cancellation eligibility. For noncitizens ordered removed in absentia, whether that se- vere penalty is proper depends on whether the notice served on the noncitizen satisfied the requirements of § 1229(a).
This Court should grant review to resolve the accelerating circuit split over this issue. The Fifth Circuit, agreeing with the Sixth Circuit, held that a defective “notice to appear” lacking the statutorily required time-and-place information could be “cured” by a subsequent “notice of hearing” containing that information, such that the separate documents considered together become “a notice to appear,” with the stop- time rule being triggered upon later service of the “curative” notice of hearing. See Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). The Third and Tenth Circuits, based on the plain language of § 1229(a) and this Court’s decision in Pereira, 138 S. Ct. at 2105, have reached the opposite conclusion. See Guadalupe v. Atty. Gen., 951 F.3d 161 (3d Cir. 2020); Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). A divided panel
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of the Ninth Circuit was in accord with the Third and Tenth Circuits, before that court granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019), vacated and reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).
This Court should bring harmony to federal law by granting certiorari, reversing the Fifth Circuit, and restoring the common-sense interpretation of § 1229(a) as requiring one document that satisfies the statute’s requirements.
I. The question presented affects many thousands of people across the country. As the government told this Court in 2018, “almost 100 percent” of putative notices to appear omit the required time-and-place in- formation. Pereira, 138 S. Ct. at 2111. Hundreds of thousands of notices to appear are served each year; a dispute about validity is embedded in every proceed- ing initiated with a notice that lacks time-and-place information. Indeed, tens of thousands of cancellation applications remain pending, each one requiring an IJ to determine whether the stop-time rule was triggered by § 1229(a) notice. Similarly, tens of thousands of in absentia removal orders are issued every year, each one dependent on whether proceedings began with the noncitizen’s being served a notice to appear that com- plies with § 1229(a).
This case involves the application of § 1229(a) in both the cancellation of removal and in absentia removal contexts, thus presenting an optimal vehicle to address the question presented. See Petition for a Writ of Certiorari (“Pet.”) at 22-24.
II. Deciding the question presented will also pro- mote uniformity in the nation’s immigration laws. Uniformity in this sphere is a foundational principle
4
of American law, with the Constitution explicitly directing Congress “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. But there can be no uniform law if basic questions affect- ing the right of an individual to remain in the country get an answer that varies among the circuits. Such a regime would result in divergent outcomes based on geography alone, not the merits of any particular noncitizen’s case.
This unfairness may be exacerbated by the Department of Homeland Security’s (“DHS”) discretion to select the venue for a removal proceeding, and thus the law that governs the case. DHS’s ability to choose the venue, coupled with its ability to transfer detainees wherever it sees fit, opens the door to unfair forum shopping for the circuit law it prefers.
III. Requiring DHS to work with the Executive Office for Immigration Review (“EOIR”) to obtain time-and-place information before serving a notice to appear—and including such information in that document, as § 1229(a) and Pereira require—is practical and will reduce administrative inefficiency and error. Doing so will also achieve the legislative purpose of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546, of which § 1229(a) was a part, by instituting a “single form of notice” to “simplify procedures for initiating removal proceedings.” H.R. Rep. 104-469(I), 1996 WL 168955 at *159.
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Many thanks to our GOOD friends Richard W. Mark and Amer S. Ahmed and their team over at the NY Office of Gibson Dunn for their extraordinary pro bono assistance in drafting our brief.
PANEL: Howard, Chief Judge, Kayatta and Barron, Circuit Judges.
OPINION BY: Judge Kayetta
KEY EXCERPTS (Courtesy of Amer S. Ahmed, Esquire, Gibson Dunn, Pro Bono Counsel for the Round Table of Former Immigration Judges as Amici):
[The BIA] added, however, that “[e]ven if [De Pena] had
suffered harm rising to the level of past persecution,” De Pena’s
proposed particular social groups are analogous to those in Matter
of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014), which the BIA
understood to have been “overruled” by the Attorney General in
Matter of A-B, 27 I. & N. Dec. 316, 319 (A.G. 2018). The BIA read
A-B as “determin[ing] that the particular social group of ‘married
women in Guatemala who are unable to leave their relationship’ did
not meet the legal standards to qualify as a valid particular
social group.”
…
That conclusion poses two questions to be resolved on
this appeal: First, does A-B categorically reject any social group
defined in material part by its members’ “inability to leave” the
relationships in which they are being persecuted; and, second, if
so, is A-B to that extent consistent with the law?
…
Is it reasonable to read the law as supporting such a categorical
rejection of any group defined by its members’ inability to leave
relationships with their abusers? A-B itself cites only fiat to
support its affirmative answer to this question. It presumes that
the inability to leave is always caused by the persecution from
which the noncitizen seeks haven, and it presumes that no type of
persecution can do double duty, both helping to define the
particular social group and providing the harm blocking the pathway
to that haven. These presumptions strike us as arbitrary on at
least two grounds.
….
First, a woman’s inability to leave a relationship may
be the product of forces other than physical abuse. In
Perez-Rabanales v. Sessions, we distinguished a putative group of
women defined by their attempt “to escape systemic and severe
violence” from a group defined as “married women in Guatemala who
are unable to leave their relationship,” describing only the former
as defined by the persecution of its members. 881 F.3d 61, 67
(1st Cir. 2018). In fact, the combination of several cultural,
societal, religious, economic, or other factors may in some cases
explain why a woman is unable to leave a relationship.
…
We therefore do not see any basis other
than arbitrary and unexamined fiat for categorically decreeing
without examination that there are no women in Guatemala who
reasonably feel unable to leave domestic relationships as a result
of forces other than physical abuse. In such cases, physical abuse
might be visited upon women because they are among those unable to
leave, even though such abuse does not define membership in the group
of women who are unable to leave.
…
Second, threatened physical abuse that precludes
departure from a domestic relationship may not always be the same
in type or quality as the physical abuse visited upon a woman
within the relationship. More importantly, we see no logic or
reason behind the assertion that abuse cannot do double duty, both
helping to define the group, and providing the basis for a finding
of persecution. An unfreed slave in first century Rome might well
have been persecuted precisely because he had been enslaved (making
him all the same unable to leave his master). Yet we see no reason
why such a person could not seek asylum merely because the threat
of abuse maintained his enslaved status. As DHS itself once
observed, the “sustained physical abuse of [a] slave undoubtedly
could constitute persecution independently of the condition of
slavery.” Brief of DHS at 34 n.10, Matter of R-A, 23 I. & N. Dec.
694 (A.G. 2005).
For these reasons, we reject as arbitrary and unexamined
the BIA holding in this case that De Pena’s claim necessarily fails
because the groups to which she claims to belong are necessarily
deficient. Rather, the BIA need consider, at least, whether the
proffered groups exist and in fact satisfy the requirements for
constituting a particular social group to which De Pena belongs.
Amer S. Ahmed
GIBSON DUNN
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Read the full opinion at the link above.
While Judge Kayetta does not specifically cite our Round Table’s brief, a number of our arguments are reflected in the opinion. Undoubtedly, with lots of help from Amer and our other superstar friends over at Gibson Dunn, we’re continuing to make a difference and hopefully save some deserving lives of the refugees intentionally screwed by our dysfunctional Immigration Court system under a politicized DOJ.
Knightess of the Round Table
I’ve heard of the bogus rationale used by the BIA in this case reflected in a number of wrongly decided unpublished asylum denials by both the BIA and Immigration Judges. This should make for plenty of remands, slowing down the “Deportation Railroad,” jacking up the backlog, and once again showing the “substantial downside” of idiotic “haste makes waste shenanigans” at EOIR and allowing biased, unqualified White Nationalist hacks like Sessions and Barr improperly to interfere with what are supposed to be fair and impartial adjudications consistent with Due Process and fundamental fairness.
Great as this decision is, it begs the overriding issue: Why is a non-judicial political official, particularly one with as strong a prosecutorial bias as Sessions or Barr, allowed to intervene in a quasi-judicial decision involving an individual and not only reverse the result of that quasi-judicial tribunal, but also claim to set a “precedent” that is binding in other quasi-judicial proceedings? Clearly, neither Ms. De Pena-Paniagua nor any other respondent subject to a final order of removal under this system received the “fair and impartial decision by an unbiased decision-maker” which is a minimum requirement under the Due Process Clause of the Fifth Amendment.
Let’s put it in terms that an Article III Circuit Court Judge should understand. Suppose Jane Q. Public sues the United States in U.S. District Court in Boston and wins a judgment. Unhappy with the result, Attorney General Billy Barr orders the U.S. District Judge to send the case to him for review. He enters a decision reversing the U.S. District Judge and dismissing Public’s claim against the United States. Then, he orders all U.S. District Judges in the District of Massachusetts to follow his decision and threatens to have them removed from their positions or demoted to non-judicial positions if they refuse.
The First Circuit or any other Court of Appeals would be outraged by this result and invalidate it as unconstitutional in a heartbeat! They likely would also find Barr in contempt and refer him to state bar authorities with a recommendation that his law license be revoked or suspended.
Yet this is precisely what happened to Ms. A-B-, Ms. De Pena Paniagua, and thousands of other asylum applicants in Immigration Court. It happens every working day in Immigration Courts throughout the nation. It will continue to happen until Article III Appellate Judges live up to their oaths of fealty to the Constitution and stop the outrageous, life-threatening miscarriages of justice and human dignity going on in our unconstitutional, illegal, fundamentally unfair, and dysfunctional Immigration Courts.
Filed clerk order (Deputy Clerk: AF): The panel previously ordered that argument for the above-captioned cases would proceed with Diaz-Reynoso v. Barr, No. 18-72833 being argued first. The panel supplements its previous order for argument in this first case, as follows: Petitioner will argue, reserving time for rebuttal if desired, then Amicus Curiae The Center for Gender and Refugee Studies will argue, then Respondent will have an opportunity to respond to both Petitioner and the Amicus, and finally Petitioner may use any time reserved for rebuttal. Additionally, Respondent should be prepared to address the arguments raised by Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals. [11616996] [18-72833, 18-72735, 18-73434, 19-70489] (AF)
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Great to know that at least some Article IIIs are paying attention. We can only hope that they will act on our expert views and save some very deserving and highly vulnerable lives. Of course, we couldn’t have gotten this far without the amazing pro bono team over at Gibson Dunn!
Amici Curiae are sixteen former immigration judges and members of the Board of Immigration Appeals (“Board”). Out of respect for the law to which they have dedicated their careers, Amici feel compelled to file this brief in support of Respondent. Amici are deeply concerned about the procedural violations in this case—in particular the Attorney General’s certification of a question that was not properly considered by the Immigration Judge and was not considered at all by the Board. This complete disregard for established procedure is alarming. It plainly violates binding federal regulations governing the narrow circumstances under which Attorney General certification is permitted and it raises serious due process concerns.
Ultimately, it is within Congress’s authority—not the Attorney General’s—to define the boundaries of asylum. And Congress has already determined that a person can qualify for asylum based on persecution that independently might constitute private criminal activity.
Amici urge the Office of the Attorney General not to take any further action on a question that is not properly before it, and therefore urge that the referral order be vacated.
HERE’S THE TOC:
TABLE OF CONTENTS
Page INTRODUCTION ………………………………………………………………………………………………………….. 1 STATEMENT OF INTEREST OF AMICI CURIAE………………………………………………………….. 1 BACKGROUND ……………………………………………………………………………………………………………. 6 ARGUMENT …………………………………………………………………………………………………………………. 8
This case is not properly before the Attorney General ……………………………………. 8
Federal regulations require that the Immigration Judge issue a
decision on asylum before certifying a case to the Board. ……………………. 9
The Attorney General may only review a Board decision, but there
was none………………………………………………………………………………………. 12
Bypassing the Board nullifies critical procedural safeguards…………………………. 13
The Board, a neutral and independent body, with deep knowledge
of its own precedent, should consider the effect of new case law on
that precedent in the first instance. ………………………………………………….. 13
Bypassing the Board raises serious due process concerns…………………… 14
The Attorney General cannot override Congress’s judgment under the
guise of a procedural mechanism……………………………………………………………….. 16
“Persecution” can be carried out or threatened by private actors that the government cannot or will not control………………………………………………………… 19
The Honorable Steven Abrams served as an Immigration Judge at the New York, VarickStreet, and Queens Wackenhut Immigration Courts in New York City. Prior to his appointment to the bench, he worked as a Special U.S. Attorney in the Eastern District of New York, and before that as District Counsel, Special Counsel for criminal litigation, and general attorney for the former Immigration and Naturalization Service (“INS”).
The Honorable Sarah M. Burr served as an Immigration Judge in New York starting in 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full time until her retirement in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit.
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He now works in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. He received the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable George T. Chew served as an Immigration Judge in New York from 1995 to 2017. Previously, he served as a trial attorney at the former INS.
2
The Honorable Bruce J. Einhorn served as an Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law, and is a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford.
The Honorable Cecelia M. Espenoza served as a Member of the Board from 2000 to 2003 and in the Executive Office for Immigration Review (“EOIR”) Office of the General Counsel from 2003 to 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer, and Senior FOIA Counsel. She now works in private practice as an independent consultant on immigration law. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997–2000) and the University of Denver College of Law (1990–97), where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on immigration law. She received the Outstanding Service Award from the Colorado Chapter of AILA in 1997.
The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and as an attorney advisor to the Board from 2013 until her retirement in 2016. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.
The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013. He is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. From 1975 to 1982, he served in various positions with the former INS, including as a general attorney, naturalization attorney, trial attorney, and deputy assistant
3
commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration-court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor at the University of Maryland School of Law, also teaching immigration law. He is also a past board member of the Immigration Law Section of the Federal Bar Association.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of the Board for six months between 2010 and 2011. She previously worked in private practice for ten years, focusing on immigration law. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King currently works as an advisor on removal proceedings.
The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench this January after twenty-seven years. Before her time on the bench, she worked in several roles, including as a consultant to various nonprofit organizations on immigration matters (including Catholic Charities and Volunteers of Legal Services) and as a staff attorney for the Legal Aid Society, Immigration Unit, in New York.
The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to
4
2004. She is the founder of IDEAS Consulting and Coaching, LLC, a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board, a position she received through the Attorney General Honors Program. She served as an Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. She has been in private practice for nearly five years, and two years ago, opened her own immigration law firm. She is the New Jersey AILA Chapter Liaison to EOIR and is the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, VA. He previously served as Chairman of the Board from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1979 to 1981 and 1986 to 1987. He was the managing partner of the Washington, DC office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, DC office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also consults, speaks, writes, and lectures at various forums throughout the country on immigration law topics.
5
The Honorable William Van Wyke served as an Immigration Judge from 1995 until 2015 in New York City and York, PA.
The Honorable Gustavo D. Villageliu served as a Member of the Board from July 1995 to April 2003. He then served as Senior Associate General Counsel for the EOIR until he retired in 2011. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.
The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details to the Tacoma, Port Isabel (TX), Boise, Houston, Atlanta, Philadelphia, and Orlando immigration courts. Previously, she practiced immigration law from 1980 to 1995 in her own firm in San Jose, California. She served as National President of AILA from 1989 to 1990 and was a national AILA officer from 1985 to 1991. She also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in the immigration law field.
HERE ARE THE ATTORNEYS AT GIBSON DUNN WHO MADE THIS HAPPEN:
Amer S. Ahmed
Ronald Kirk
Megan B. Kiernan
Lalitha D. Madduri
Chelsea G. Glover
Counsel for Amici Curiae
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Thanks to all for making this happen. Great teamwork in the name of Due Process!
Special thanks to our colleague Judge Lory Diana Rosenberg who served as our “Group Leader” in working with Gibson Dunn and to Judge Jeffrey Chase for assembling the group and putting the “finishing touches” on the filing.
From: Manny Rivera <mrivera@wearerally.com>
Date: Tue, Mar 14, 2017 at 2:30 PM
Subject: BREAKING: Federal Court Finds Jurisdiction to Hear DREAMer Case
To: Manny Rivera <mrivera@wearerally.com>
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FEDERAL COURT FINDS JURISDICTION TO HEAR CONSTITUTIONAL CLAIMS BROUGHT BY DREAMER DANIEL RAMIREZ MEDINA
Magistrate Judge James P. Donohue Recommends Court Hear Arguments on the Constitutionality of Mr. Ramirez’s Arrest and Detention; Denies Petitioner’s Motion for Immediate Conditional Release
Government’s Attempt to Throw Out Petitioner’s Claims Dismissed by the Court
MEDIA ALERT: Press Teleconference Call with Mr. Ramirez’s Legal Team Scheduled for TODAY at 3:30pm Pacific/6:30pm Eastern
Dial-In: (855) 557-3561
Conference ID: 89214839
SEATTLE, Wash. March 14, 2017 — Chief U.S. Magistrate Judge James P. Donohue today issued a recommendation denying the Government’s Motion to Dismiss, specifically acknowledging federal district court jurisdiction in the habeas petition filed by Daniel Ramirez Medina. Because of uncertainty of the impact of DACA, the court did not order the immediate release of Mr. Ramirez, the DACA beneficiary unconstitutionally detained by Immigration and Customs Enforcement (“ICE”) in Seattle for more than a month, but deferred ruling on the merits of whether he should be released while the merits of the habeas petition is being adjudicated. Mr. Ramirez’s release, called for by immigration advocates, community leaders and Members of Congress from throughout the country, was requested by Mr. Ramirez pending the final determination of the merits challenging his unconstitutional detention. Counsel for the petitioner believes that DACA supports his immediate release.
“We are pleased that the court rejected the government’s effort to evade judicial review,” said Theodore J. Boutrous, Jr., a partner at Gibson, Dunn & Crutcher, and a member of Mr. Ramirez’s legal team. “This is an important ruling because one of the core purposes of habeas corpus is to ensure judicial review of executive detentions and hold the executive branch accountable.”
“But at the same time, Daniel has been wrongfully detained for too long,” added Mr. Boutrous. “We plan to immediately file an objection to the magistrate judge’s denial of our motion seeking immediate conditional release. The government itself has already determined that he represents no threat to public safety or national security. Dreamers like Daniel who have followed the rules and kept their part of the DACA promise deserve to have their rights recognized and vindicated by the court. This is especially true where, as here, the government has failed to keep its promise, and has provided no independent evidence to support its baseless claims.”
In his findings, Judge Donohue noted:
“The Ninth Circuit has not yet decided whether a district court has the authority to conditionally release a habeas petitioner pending a decision on the merits of the petition. United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016), pet. for cert. filed (Feb. 16, 2016) (citing In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) (per curiam)). Authority from other circuits strongly supports the conclusion that this Court may exercise such authority in the appropriate circumstances.”
The Court also recommended that because Mr. Ramirez remains in custody, and because there are nearly 800,000 DACA beneficiaries who are interested in the outcome of these proceedings, that the merits phase of the case be treated on an expedited schedule.
The case could have broader implications on other DACA beneficiaries, as the lawsuit calls on the court to issue a declaratory judgement that Mr. Ramirez and other Dreamers have constitutionally-protected interests in their status conferred under the Deferred Action for Childhood Arrivals (“DACA”) program.
“Our objective all along has been to end this DREAMer’s nightmare so that Daniel Ramirez may return to his family and his three-year-old citizen child,” said Mark Rosenbaum, director of Opportunity Under Law at Public Counsel, and a member of Mr. Ramirez’s legal team. “While the court today has taken one step towards justice, the government’s attempts to delay justice for this young man who has been detained now for over a month and never been charged with any crime sends an unmistakable message that the word of executive branch cannot be trusted, that it can ‘play bait and switch’ with the life of a DACA recipient.”
Mr. Ramirez was brought to this country as a child and knows no home but the United States. He gave the government sensitive personal information, paid a substantial fee, and voluntarily subjected himself to rigorous background checks—twice—as part of the DACA program, most recently in May 2016. He has no criminal history and has not been charged with any unlawful conduct. Despite this, he was arbitrarily arrested without a warrant or probable cause. The U.S. Government has had more than a month to submit any evidence of wrongdoing or criminal activity, yet no evidence has been presented because no evidence exists.
“Daniel has been in detention for more than a month without ever being charged with a crime, and to this day the government has shown us no evidence that he has done anything wrong” said Ethan Dettmer, a partner at Gibson, Dunn & Crutcher, and a member of Mr. Ramirez’s legal team. “No one should be treated that way, and it is unconstitutional. We are arguing the merits of this case in federal court.”
At a hearing in Seattle last Wednesday, counsel for Mr. Ramirez presented oral arguments on why federal court is the only appropriate venue to hear and decide the habeas petition challenging the constitutionality of his arrest and extended detention. In his decision, Judge Donohue agreed with the Petitioner’s arguments that federal court has jurisdiction over this case because of the critical constitutional issues at stake.
Mr. Ramirez has now been subjected to unconstitutional detention for 32 days without being charged with a crime and with no evidence presented to justify his continued detention.
Petitioners will file a written objection to the Magistrate Judge’s Report and Recommendation by no later than March 28, 2017.
A national press teleconference call with members of Mr. Ramirez’s legal team is scheduled for 3:30pm Pacific/6:30pm Eastern. Counsel will be available during this call to discuss today’s decision and answer questions from members of the media. To view the court’s Report and Recommendation, click here.
Press Teleconference with Counsel for Daniel Ramirez Medina—Dial-In Information:
Dial-In: (855) 557-3561
Conference ID: 89214839
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Public Counsel is the nation’s largest pro bono law firm. Founded in 1970, Public Counsel strives to achieve three main goals: protect the legal rights of disadvantaged children; represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes; and foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation. Through a pro bono model that leverages the talents and dedication of thousands of attorney and law student volunteers, along with an in-house staff of more than 75 attorneys and social workers, Public Counsel annually assists more than 30,000 families, children, immigrants, veterans, and nonprofit organizations and addresses systemic poverty and civil rights issues through impact litigation and policy advocacy. For more information, visit www.publiccounsel.org.
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Thanks to Pilar Marrero of La Opinion for sending this in!
