📚 🦸🏽‍♀️🦸🏼‍♀️🦸🏻‍♂️NDPA “ACADEMIC HONOR ROLL!” — “Practical Scholars” Make Their Mark, & More! — The Contributions Of This Group Are Astounding! — Assembled & Originally Published By ImmProf Superstar 🌟 Professor Kit Johnson (Oklahoma Law)!

Professor Kit Johnson
Professor Kit Johnson (the “Amazing KitJ @ ImmProf”)
Thomas P. Hester Presidential Professor,  U of OK Law
Contributor, ImmigrationProf Blog

https://lawprofessors.typepad.com/immigration/2023/01/celebrating-immprof-achievements-in-2022-updated-.html

Wednesday, January 4, 2023

Celebrating Immprof Achievements in 2022 * UPDATED *

By Immigration Prof

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Rahuljakhmola, CC BY-SA 4.0, via Wikimedia Commons

I had a few highlights roll in after this was first posted, so here is an updated thread regarding the wonderful things that immigration law professors around the country had to celebrate in 2022.

New Jobs:

  • Jennifer Chacón joined the faculty at Stanford Law School.
  • Ming Hsu Chen joined the faculty at UC Hastings.
  • Eugenio Mollo, Jr. joined Toledo as a Clinical Assistant Professor of Law to launch and direct the school’s Immigrant Justice Clinic.
  • Aadhithi Padmanabhan (Maryland) started her first full-time job in academia as an Assistant Professor of Law directing the new Federal Appellate Immigration Clinic.
  • Carrie Rosenbaum joined Chapman as a Visiting Assistant Professor in Fall 2022.
  • Tania N. Valdez started her first tenure-track job as an Associate Professor of Law at The George Washington University Law School.

Promotions and Awards:

  • Lauren R. Aronson (Illinois) was promoted to Full Clinical Professor in August and granted Clinical Tenure.
  • Jason Cade (Georgia) was promoted to full professor. He also received the University of Georgia’s Engaged Scholar Award.
  • Jennifer Chacón (Stanford) received the Bruce Tyson Mitchell professorship.
  • Ming Hsu Chen (Hastings) was named the Harry & Lillian Hastings Research Chair and Founding Director of the Center for Race, Immigration, Citizenship, and Equality (RICE).
  • Shane Ellison (Duke) was promoted to Clinical Professor of Law (Teaching).
  • Kate Evans (Duke) was awarded clinical tenure in 2022.
  • Laila Hlass (Tulane) was promoted to Clinical Professor of Law. She was also awarded the 2022 NIPNLG Elisabeth S. “Lisa” Brodyaga Award.
  • Kevin Johnson (Davis) was named the first recipient of the Michael A. Olivas Award for Outstanding Leadership in Diversity and Mentoring in the Legal Academy. We look forward to the formal celebration in 2023.
  • Kit Johnson (Oklahoma) received the Thomas P. Hester Presidential Professorship.
  • Gabriela Kahrl (Maryland) was promoted from Associate Director to Co-Director of the Chacón Center for Immigrant Justice.
  • Jennifer Lee (Temple) was approved for tenure by a vote of the law school faculty — their first tenured clinician! We look forward to celebrating the formal approval from central campus in 2023.
  • Mauricio E. Noroña (Cardozo) became a VAP this year after a stint as a teaching fellow in the Cardozo Immigration Justice Clinic.
  • Shalini Bhargava Ray (Alabama) was approved for tenure by a vote of the law school faculty. We look forward to celebrating the formal approval from central campus in 2023.
  • Rachel Rosenbloom (Northeastern) is a fellow with Northeastern’s Center for Law, Equity and Race (CLEAR) while she is on sabbatical this year.
  • Scott Titshaw (Mercer) was promoted in 2022 from Associate Professor to Professor.

Administrative Gigs:

  • Hemanth Gundavaram (Northeastern) became Associate Dean of Experiential Education and Director of Clinical Programs; he continues to also serve as Director of the Immigrant Justice Clinic.
  • Anita Maddali (Northern Illinois) became the Associate Dean for Student Affairs in August 2022, stepping down from the Director of Clinics role she’d been in since 2011.
  • Rachel Rosenbloom (Northeastern) finished her term as Associate Dean for Experiential Education.

Other Exciting News:

  • Kate Evans (Duke) secured an additional $2.5 million grant to support Duke’s Immigrant Rights Clinic and the activities of the Duke Immigrant & Refugee Project.
  • Jill Family (Widener) became Chair of the ABA Administrative Law section.
  • Dina Haynes (New England) started a non-profit–Refugeeprojects.org–through which she has assisted many refugees, asylum seekers, pro bono attorneys and governments. She coordinates 800 attorneys assisting Afghans with evacuation, transit and Immigration status.
  • Laila Hlass (Tulane), Sarah Sherman-Stokes (Boston U), and Mary Yanik (Tulane) received a 2022 Research & Policy Grant from Boston University’s Center for Antiracist Research.
  • Geoffrey Hoffman (formerly Houston) became an immigration judge!

NEW BABIES (Squee!)

  • Joe Landau (Fordham) welcomed Max Fitzgerald Landau on 1/1/22 at 4:49am. 6 lbs, 2 oz of greatness.
  • Lauren R. Aronson (Illinois) welcomed Max Reuben Aronson-Orr on 12/15/2022 at 8:00pm. 8 lbs., 12 oz. of joy.

Congratulations to all!

-KitJ

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

“Super-kudos” to all! 🎖🏆😎 Thanks to Kit (the “Amazing KitJ @ ImmProf”) for putting this together and many congrats on her receipt of the Thomas P. Hester Presidential Professorship @ Oklahoma Law. Couldn’t have gone to a more deserving and consequential role model for the NDPA!

As one of my NDPA colleagues recently observed about the work of these NDPA “practical scholars:”

[T]he law schools today have incredible clinical programs that encourage and develop critical thinking and creative problem-solving; they send so many great new members of the NDPA out into the world.

Those familiar with what’s really happening in American justice these days also had this cogent observation:

EOIR does exactly the opposite; it kills critical or original thought, and rewards the bland “go along to get along” types. And the training is horrible, and actually refuses to include anyone from outside – even former IJs and Board Members. So the good people either quit, linger in the shadows, or are broken over time.

It’s very clear that a better Dem Attorney General would have “tapped in” to the practical problem solving skills, guts, integrity, and intellectual firepower of those on Kit’s honor roll and many others like them. I note with great pleasure and immense gratitude that Honor Roll member, Judge Geoffrey Hoffman, formerly of Houston Law, did “make the leap” to the Immigration Bench this year. But we need more, many more, like Judge Hoffman at all levels of EOIR to “rescue the sinking ship.”

The talent to change EOIR from a “CINO” to a “model court system” is out here! What’s sorely missing is dynamic leadership and consistent direction from the Biden Administration and Dems in Congress.

Immigrants have legal rights. Immigration isn’t going away in the future no matter how much Dems try to “wish it below the radar screen” and the GOP tries to “demonize it to death!”

The disgraceful failure of both parties to enforce legal rights of immigrants, stand up for human rights, and take realistic approaches to human migration is damaging our democracy and diminishing our national strength. 

I advocate NDPA members “taking over” the Immigration Judiciary and fixing things from “the bottom up.” It won’t happen overnight; but waiting for real leadership from Dems or change from the “top” is like “waiting for Godot” — Not going to happen! See, e.g., https://wp.me/p8eeJm-8hm.

And, you’d be surprised at the useful insights and knowledge that can be gained from getting “inside EOIR” — an intentionally opaque, “closed” organization if there ever was one. That’s why courts often pay attention to what we “Former Immigration Judges and Board Members in the Round Table” say in our amicus briefs. We’re they only ones speaking truth about what really happens in Immigration Court “behind the bench.” All the “official versions” are “highly sanitized,” “manipulated,” or sometime just “unadulterated BS!” 

Don’t leave “judging in America” to the Federalist Society, the Heritage Foundation, and inept Dem politicos who are too tone-deaf, insecure, and/or scared to do the right thing for YOUR future and the future of our nation. 

Storm the tower! 🗼Take back justice at the retail level of our system! Better judges for a better America! 

Tower of Babel
”Storm the Tower!” — EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”)
By Pieter Bruegel The Elder
Public Domain

 

🇺🇸 Due Process Forever!

PWS

01-14-23

⚖️👩🏽‍⚖️👨🏽‍⚖️🗽🗽🇺🇸 GARLAND’S LATEST IMMIGRATION JUDGE APPOINTMENTS SHOW QUALITY, DIVERSITY! — Noted “Practical Scholars” Hoffman, Racine, Haer Join The Bench As “Balance” Between Gov. & Private Sector Appointments Improves Significantly!

 

Here’s the list of the 19 newly appointed U.S. Immigration Judges: https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMjA4MDUuNjE4NDgwNTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9lb2lyL3BhZ2UvZmlsZS8xNTI0MzM2L2Rvd25sb2FkIn0.9Wv3WdIlGNb8WuNMytym1WmPC51-32QHaSCK76FgdYo/s/842922301/br/142150174324-l

NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy

5107 Leesburg Pike

Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov

www.justice.gov/eoir @DOJ_EOIR

Aug. 5, 2022

EOIR Announces 19 New Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of 19 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

EOIR continues to work to expand its immigration judge corps and welcomes qualified candidates from all backgrounds to join the agency. In addition to making a difference through service to our Nation, immigration judges join a diverse and inclusive workforce. Individuals interested in these critical positions are invited to sign up for job alerts that are sent when new opportunities become available.

After a thorough application process, Attorney General Merrick B. Garland appointed Tanisha L. Bowens-McCatty, Michael P. Davis, James T. Dehn, Julia E. Egy, Ashley Gadson-Andrews, Amy F. Haer, Robert J. Herrington, Geoffrey A. Hoffman, Maria L. Jaimes-Salgado, Christina M. Jimenez, Christopher M. Kozoll, Nicole A. Lane, Francis M. Mwangi, Alex D. Perez, Xavier F. Racine, Raphael G. Rojas, Marc B. Stahl, Michelle M. Venci, and Mary C. Vergona to their new positions.

Biographical information follows:

Tanisha L. Bowens-McCatty, Immigration Judge, Hyattsville Immigration Court

Tanisha L. Bowens-McCatty was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Bowens-McCatty earned a Bachelor of Arts in 1997 from the University of North Florida and a Juris Doctor in 2001 from the Florida State University College of Law. From 2013 to 2021, she worked for the American Bar Association’s Commission on Immigration in Washington, D.C., serving as the Associate Director (2013-2020) and the Director of Legal Initiatives and Member Engagement (2020-2021). From 2006 to 2011, she worked for the Catholic Legal Immigration Network Inc., in Washington, D.C., in the following roles: Senior Project Coordinator for the National Pro Bono Project for Children (2010-2011); Project Coordinator for the Raids Preparedness & Response Project (2008-2010); and Legalization Attorney (2006-2008). From 2004 to 2006, she was a supervising attorney for Catholic Charities Legal Services of the Archdiocese of Miami in Miami and in Fort Lauderdale, Florida, Broward County Satellite Office, and from 2003 to 2004 she worked as a staff attorney. From 2001 to

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 2

2003, she was a staff attorney with Americans for Immigrant Justice (formerly the Florida Immigrant Advocacy Center) in Miami. Judge Bowens-McCatty is a member of the Florida Bar.

Michael P. Davis, Immigration Judge, Sterling Immigration Court

Michael P. Davis was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Davis earned a Bachelor of Arts in 1997 from John Carroll University and a Juris Doctor in 2000 from the University of Illinois College of Law. From 2016 to 2022, he served as the Executive Deputy Principal Legal Advisor, U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security. From 2012 to 2016, he served as ICE Deputy Principal Legal Advisor for Enforcement and Litigation. From 2005 to 2012, held the following roles at ICE: Appellate Counsel (2005-2007); Deputy Chief (2007-2009); and Chief of the ICE Immigration Law and Practice Division (2009-2012). From 2003 to 2005, he served as Associate Counsel, Refugee and Asylum Law Division, U.S. Citizenship and Immigration Services, Department of Homeland Security. From 2000 to 2003, he served as an assistant district counsel with the former Immigration and Naturalization Service in Los Angeles, entering on duty through the Attorney General’s Honors Program. Judge Davis is a member of the State Bar of California.

James T. Dehn, Immigration Judge, Sterling Immigration Court

James T. Dehn was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Dehn earned a Bachelor of Arts in 1995 from George Mason University, a Master of Arts in 1998 from the Syracuse University Maxwell School of Citizenship and Public Affairs, and a Juris Doctor in 1998 from the Syracuse College of Law. From 2020 to 2022, he served as the Chief Appellate Counsel at U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in Washington, D.C. From 2019 to 2020, he served as an attorney advisor at the Office of Chief Counsel, U.S. Citizenship and Immigration Services, in Washington, D.C. From 2005 to 2019, he served as an attorney advisor at the Office of the Principal Legal Advisor, ICE, in Washington, D.C. Also, from 2007 to 2011, he served as a government appellate counsel, and from 2002 to 2006, as a trial defense counsel, in the U.S. Army Reserve, Judge Advocate General’s Corps, National Capital Region. From 2000 to 2005, he served as an attorney advisor at the Office of General Counsel, U.S. Department of Veterans Affairs, in Washington, D.C. From 1998 to 1999, he was an associate attorney at Whelan, DeMaio & Kiszkiel PA, in Miami. Judge Dehn is a member of the Maryland State Bar.

Julia E. Egy, Immigration Judge, Sterling Immigration Court

Julia E. Egy was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Egy earned a Bachelor of Journalism in 1997 from the University of Missouri-Columbia and a Juris Doctor in 2002 from American University Washington College of Law. From 2014 to 2022, she served as a senior panel attorney with the Board of Immigration Appeals (BIA), Executive Office for Immigration Review. From 2012 to 2014, she served as a supervisory attorney, and from 2004 to 2012, as an attorney advisor, with the BIA. From 2003 to 2004, she was in private practice. From 2002 to 2003, she served as a judicial law clerk for the Baltimore, Philadelphia, and York immigration courts. Judge Egy is a member of the Missouri Bar.

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 3

Ashley Gadson-Andrews, Immigration Judge, Los Angeles – Olive Street Immigration Court

Ashley Gadson-Andrews was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Gadson-Andrews earned a Bachelor of Science in 2008 from the University of Arizona – Eller College of Management and a Juris Doctor in 2011 from the University of Southern California Gould School of Law. From 2013 to 2022, she served as a deputy district attorney at the Los Angeles District Attorney’s Office. From 2012 to 2013, she was a trial attorney with the Los Angeles Dependency Lawyers at Edelman Children’s Court in Monterey Park, California. Judge Gadson-Andrews is a member of the State Bar of California.

Amy F. Haer, Immigration Judge, Atlanta – W. Peachtree Street Immigration Court

Amy F. Haer was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Haer earned a Bachelor of Science in 2003 from the Georgia Institute of Technology and a Juris Doctor in 2008 from the George Washington University Law School. From 2017 to 2022, she was the Director of Immigration Legal Services at Catholic Charities Atlanta. From 2015 to 2017, she was the Associate Director for Immigration and Refugee Services at Catholic Community Services – Tucson (CCS-T). From 2012 to 2015, she was the Program Director for the Immigrant Survivors Legal Assistance Program at CCS-T. From 2008 to 2012, she was a staff attorney with Catholic Charities Atlanta. Judge Haer is a member of the State Bar of Georgia.

Robert J. Herrington, Immigration Judge, Los Angeles – Olive Street Immigration Court

Robert J. Herrington was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Herrington earned a Bachelor of Arts in 1975 from the University of Southwestern Louisiana and a Juris Doctor in 1985 from the LSU Paul M. Hebert Law Center. From 2005 to 2022, he was a criminal defense lawyer in Plano, Texas. From 1998 to 2005, he served as an assistant federal public defender at the Office of the Federal Public Defender in Dallas. From 1996 to 1997, he was a general practitioner in Dallas. From 1991 to 1995, he served as a staff attorney at the Federal Deposit Insurance Corporation and then at the Resolution Trust Corporation. From 1988 to 1991, he served as a law clerk to the U.S Bankruptcy Court. From 1985 to 1988, he was an immigration lawyer in private practice. Judge Herrington is a member of the State Bar of Texas.

Geoffrey A. Hoffman, Immigration Judge, Houston – S. Gessner Road Immigration Court

Geoffrey A. Hoffman was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Hoffman earned a Bachelor of Arts in 1991 from Columbia College, Columbia University, a Juris Doctor in 1997 from Tulane Law School, and a Master of Laws in 2004 from Harvard Law School. From 2009 to 2022, he served as Director of the Immigration Clinic at the University of Houston Law Center. From 2004 to 2009, he practiced immigration law at Kurzban, Kurzban, Weinger, and Tetzeli PA in Miami. From 1998 to 2000, Judge Hoffman served as a judicial law clerk for the Honorable Paul V. Gadola U.S. District Court for the Eastern District of Michigan. Judge Hoffman is a member of the Florida Bar and the State Bar of Michigan.

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 4

Maria L. Jaimes-Salgado, Immigration Judge, Houston – Greenspoint Park Immigration Court

Maria L. Jaimes-Salgado was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Jaimes-Salgado earned a Bachelor of Science in 2006 from the University of Houston-Downtown and a Juris Doctor in 2009 from Texas South University Thurgood Marshall School of Law. From 2021 to 2022, she was an associate attorney with the Law Office of Velia E. Rosas PLLC in Houston. From 2019 to 2022, she was in private practice in Houston. From 2012 to 2019, she was managing attorney, and from 2009 to 2012, she was an associate attorney, at the Law Office of Isaias Torres PC in Houston. Judge Jaimes-Salgado is a member of the State Bar of Texas.

Christina M. Jimenez, Immigration Judge, Arlington Immigration Court

Christina M. Jimenez was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Jimenez earned a Bachelor of Arts in 1997 from the University of Washington and a Juris Doctor in 2001 from Boston University. From 2002 to 2022, she served as an attorney and a trial judge with the U.S. Air Force in the following locations: Royal Air Force Lakenheath, United Kingdom; Kunsan Air Base, Republic of Korea; Kadena Air Base, Japan; Bolling Air Force Base, Washington, D.C.; Osan Air Base, Republic of Korea; Lajes Field, Azores, Portugal; Joint Base Andrews, Maryland; and Travis Air Force Base, California. In 2022, she retired as a colonel from the U.S. Air Force, having last served as the Chief Circuit Military Judge for the Western Circuit. Judge Jimenez is a member of the Massachusetts Bar.

Chris M. Kozoll, Immigration Judge, Memphis Immigration Court

Chris M. Kozoll was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Kozoll earned a Bachelor of Arts in 1993 from the University of Notre Dame, a Master of Arts in 2000 from Gonzaga University, and a Juris Doctor in 2004 from the University of Colorado School of Law. From 2010 to 2022, he was a partner at Kozoll & Associates Immigration Law PLLC. From 2007 to 2010, he served as an associate attorney with the Law Office of Dennis M. Clare PSC. In 2007, he was a contract attorney at Lichter Associates PC. From 2004 to 2007, he worked as an associate attorney with the Joseph Law Firm PC. Judge Kozoll is a member of the Kentucky Bar.

Nicole A. Lane, Immigration Judge, Newark Immigration Court

Nicole A. Lane was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Lane earned a Bachelor of Arts in 1996 from the State University of New York at Albany and a Juris Doctor in 1999 from the George Washington University Law School. From 2018 to 2022, she served as an assistant director at the New York State Adjudication Services Office. From 2012 to 2018, she served as a senior Administrative Law Judge, and from 2008 to 2012, she served as an Administrative Law Judge at the New York State Unemployment Insurance Appeal Board. From 2005 to 2008, she was a director of public affairs at New York City Health and Hospitals in Harlem, New York, and worked as a public policy analyst prior to that. Judge Lane is a member of the New Jersey State Bar and New York State Bar, and is admitted to practice before the Supreme Court of the United States.

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 5

Francis M. Mwangi, Immigration Judge, Fort Worth Immigration Adjudication Center

Francis M. Mwangi was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Mwangi earned a Bachelor of Arts in 1991 from Kenyatta University in Nairobi, Kenya, a Juris Doctor in 1997 from the West Virginia University College of Law, and a Master of Laws in 2011 from the University of Houston Law Center. From 2019 to 2022, he was an attorney supervisor, and from 2016 to 2019, a staff attorney, in the Legal Services Section at State Counsel for Offenders, Texas Board of Criminal Justice. From 2003 to 2016, he was in private immigration practice in Maryland and Texas. From 1997 to 2003, he was an associate with the immigration law firm of Blaine L. Gilbert & Associates in Baltimore. Judge Mwangi is a member of the Maryland State Bar, State Bar of Texas, and West Virginia State Bar.

Alex D. Perez, Immigration Judge, Houston – Greenspoint Park Immigration Court

Alex D. Perez was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Perez earned a Bachelor of Arts in 2006 from Northwestern University and a Juris Doctor in 2009 from the University of Houston Law Center. From 2019 to 2022, he served as a deputy chief counsel, and from 2010 to 2019, as an assistant chief counsel, with the Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Department of Homeland Security in Houston. From 2009 to 2010, he worked in private practice in Houston. Judge Perez is a member of the State Bar of Texas.

Xavier F. Racine, Immigration Judge, Sterling Immigration Court

Xavier F. Racine was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Racine earned a Bachelor of Arts in 1998 from Boston College and a Juris Doctor in 2001 from Suffolk University Law School. From 2014 to 2021, he was a partner at Priale & Racine PLC. From 2008 to 2014, he was a partner at Marks Calderon Derwin & Racine PLC. From 2002 to 2008, he was a senior associate at Montagut & Sobral PC. From 2001 to 2002, he was an associate with Jaime Aparisi & Associates LLC. Judge Racine is a member of the Massachusetts Bar, as well as the Fourth Circuit Court of Appeals.

Raphael G. Rojas, Immigration Judge, Orlando Immigration Court

Raphael G. Rojas was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Rojas earned a Bachelor of Science in 1990 from Long Island University at C.W. Post Campus, a Juris Doctor in 1994 from the Interamerican University of Puerto Rico School of Law, and a Master of Laws in Health Law in 1996 from Loyola University Chicago School of Law. From 2008 to 2022, he served as Superior Judge at the Judicial Branch of the Commonwealth of Puerto Rico. From 2006 to 2008, he was in private practice in Puerto Rico. From 2000 to 2006, he served as Municipal Judge at the Judicial Branch of the Commonwealth of Puerto Rico. From 1995 to 2000, he was in private practice in Puerto Rico. Judge Rojas is a member of the Commonwealth of Puerto Rico Bar.

Communications and Legislative Affairs Division

EOIR Announces 19 New Immigration Judges Page 6

Marc B. Stahl, Immigration Judge, Chicago Immigration Court

Marc B. Stahl was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Stahl earned a Bachelor of Arts in 1988 from Georgetown University and a Juris Doctor in 1991 from the University of Chicago Law School. From 1991 to 2021, he served as an assistant public defender in the Law Office of the Cook County Public Defender in Chicago, and from 2016 to 2021, he was the Chief of the Felony Trial Division. From January to July 2022, he was in private practice. Judge Stahl is a member of the Illinois State Bar.

Michelle M. Venci, Immigration Judge, Chicago Immigration Court

Michelle M. Venci was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Venci earned a Bachelor of Arts in 1997 from the University of Notre Dame and a Juris Doctor in 2002 from Chicago-Kent College of Law. From 2010 to 2022, she served as an assistant chief counsel, Office of the Principal Legal Advisor (OPLA), U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security, in Chicago. From 2007 to 2010, she served as an assistant chief counsel, OPLA, ICE in Orlando, Florida. From 2002 to 2007, she served as an Assistant State’s Attorney with the Cook County State’s Attorney’s Office in Chicago. Judge Venci is a member of the Illinois State Bar.

Mary Catherine Vergona, Immigration Judge, Sterling Immigration Court

Mary Catherine Vergona was appointed as an Immigration Judge to begin hearing cases in August 2022. Judge Vergona earned a Bachelor of Science in 1987 from Miami University in Oxford, Ohio, a Juris Doctor in 1997 from The University of Akron in Akron, Ohio, and a Master of Laws in Military Law in 2005 from The Judge Advocate’s General Legal Center and School in Charlottesville, Virginia. From 1998 to 2022, Judge Vergona served as a Judge Advocate General in the U.S. Army, culminating with her serving as a Circuit Judge from 2019 to 2022 at Fort Belvoir, Virginia. Judge Vergona is a member of the Virginia State Bar.

— EOIR —

The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. EOIR’s mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR is committed to ensuring fairness in all cases it adjudicates.

Communications and Legislative Affairs Division

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

Congrats to all! Looks like a well-qualified group with a big job ahead of them. For me, personally, three names particularly stand out.

Professor Geoffrey Hoffman
Judge Geoffrey Hoffman, Houston Immigraton Court

Judge Geoffrey Hoffman of the Houston (S. Gessner Rd.) Immigration Court was most recently the Director of the Immigration Clinic at Houston Law and a noted immigraton litigator and universally respected scholar whose work I have cited and published on Courtside.

Judge Xavier Racine of the Sterling (VA) Immigration Court is an outstanding practitioner who appeared many times before me at Arlington. I also particularly remember that he generously shared his time and expertise with our JLCs and summer interns as a frequent participant in our Brown Bag Lunch Series on “Careers in Immigration.”

Judge Amy F. Haer of the Atlanta (W. Peachtree) Immigration Court was most recently Director of Immigration Services for Catholic Legal Services of Atlanta. A graduate of GW Law, she is an alum of the GW Immigration Clinic headed by my good friend and neighbor in Alexandria, Professor Alberto Benitez. Professor Benitez wrote to me earlier on Friday about his pride in Judge Haer’s achievements and how honored he was to be able to attend her investiture by Zoom. Professor Benitez informs me that Judge Haer is the third of his clinic students to be elevated to the Immigration Bench! Way to go in training the “next generation” of the NDPA!

EOIR needs change! Big time! Lives depend upon it, as does the future of our legal system, now staggering under the load of far too many “ivory tower right wing ideologue jurists” at all levels who have lost sight of the serious scholarship, humanity, and practicality with which the law must be interpreted and applied. Justice without mercy isn’t justice at all, something that the Supremes’ GOP majority needs to be “schooled” on! To the extent that change starts at the “retail level” of EOIR, the latest selections represent progress.

🇺🇸 Due Process Forever!

PWS

08-06-22 

⚖️NDPA: LAW YOU CAN USE: Professor Geoffrey A. Hoffman Says Success Could Be In Your Background! 😎🗽

Republished from ImmigrationProf Blog:

https://urldefense.com/v3/__https://lawprofessors.typepad.com/immigration/2022/02/guest-post-foreground-and-background-issues-by-geoffrey-a-hoffman.html__;!!LkSTlj0I!GtiDnj-eYO_mcLN0fG2g1OUH6UIraTViIBHbVFCS5G6EmSA6TpFuullv_q9ueiqcr6i08C9xlU9jG7unFbaIZmAGOmUw$

Thursday, February 10, 2022

Guest Post: Foreground and Background Issues by Geoffrey A. Hoffman

By Immigration Prof

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Foreground and Background Issues by Geoffrey A. Hoffman*

I want to say a bit about “foreground” versus “background” issues in immigration cases. I have noticed puzzlement at these concepts and recently when lecturing noticed that people do not appreciate the difference. In addition, it is not a common way of thinking about the law. It has become crucial for me, however, in my experience to clearly and effectively distinguish between these two concepts. It is also a rich source of ideas, strategies and techniques in a variety of cases, so let me try to explain it here. The other motivation for laying out the theory is that (in the future) I can point to this piece of writing as a “backgrounder” for my lectures … Sorry for the pun!

First, what are some foreground issues? You can start by readily imagining the elements of  any claim – take for example an asylum case.  In such a case, the applicant (or a respondent, in court) has the burden to prove most (but not all) of the issues. Those may include past persecution, future persecution, nexus (“on account of” one of the five statutory grounds), etc. The applicant may or may not have to prove that he or she cannot safely internally relocate or that there has been a fundamental change in circumstances in the country of origin. Nevertheless those are all “foreground” issues. Other pretty straightforward issues that have to be adjudicated and will be evaluated by the IJ include (1) credibility; (2) sufficiency of the evidence or corroboration; and (3) related to credibility, the consistency or coherence of the applicant’s story. Of course, background and foreground do not apply just to asylum, but can be imagined in the context of any case, and in any field of the law.

At this point, I would implore students to shout-out any “background” issues they can think of. In a pedestrian sense, all issues that come up in the course of a hearing or series of proceedings can be “brought to light” – by the judge or either party – and therefore get converted from “background” to “foreground.” But, many times these issues are not brought up, and often go unaddressed. If they are not brought up by counsel, for example, they may be waived and therefore a rich source of argument on appeal may be lost.

Some examples of background issues, and by now you probably see where I am going, include, interpreter (verbal) or translation (written) errors, transcription issues, competency or more saliently “incompetency” issues, jurisdiction, firm resettlement, other bars to relief, U.S. citizenship as a defense to deportation, other defenses, the existence of qualified relatives, unexplored avenues for relief, etc., etc. Basically, any issue that is lurking  behind the scenes in any immigration court litigation can be seized upon and (in appropriate cases) be used on appeal when the BIA is reviewing what happened below before the trial judge.

A good example from an actual case may be helpful as an illustration to the reader at this point.

In my first pro bono BIA appeal years ago I utilized a series of “background” issues that resulted successfully (albeit after several months or years) in:  (1) a remand to the IJ; (2) termination of the case on remand; and (3) ultimately,  an (affirmative) grant of asylum for the mother and young child before USCIS. The case involved a young Haitian mother and her 7 or 8 year-old son.  I got the case on appeal and read the transcript immediately.  What struck me on reviewing the record was that at the very beginning of the proceedings, at the Master Calendar Hearing, an attorney or the judge mentioned very briefly in passing that the young boy was deaf. He had a disability that resulted in his being fitted with a device, a cochlear implant. The comment went unexplored or unremarked upon throughout the pendency of proceedings. Ultimately, the judge denied the political asylum claim of the mother. The fact that the child would be persecuted on account of his disability was not argued, mentioned, or even touched upon in the IJ’s decision denying relief.

As appellate counsel, I wondered if this “background” issue might be addressed on appeal. By researching how to make this a “foreground” issue on appeal, and hopefully a basis for a good remand, I learned about a very helpful case, Matter of Lozada (still good law) and was able to follow the rules and strict procedures in that case to prove that the prior attorney was ineffective by failing to bring out a key argument that could have been dispositive of the entire case.

The task was not an easy one. It should not be overlooked that Lozada and the case’s not insignificant requirements are burdensome. Moreover, the motion to remand had to be very thoroughly documented with expert affidavits, NGO reports, witness statements, and not to mention medical documents.

Once remanded, I noticed a further issue: in the file there was a one-page document with an old agency stamp which happened to be a copy of the I-589 asylum application that my client had never received an interview on and which had not been adjudicated.  In bringing this further “background” issue to the Court’s attention, the burden shifted to my opposing counsel to provide the Department’s position on when, if ever, the agency had provided the required affirmative interview as required by Due Process, the INA, and the regulations.

Because the government could not prove that the interview had ever occurred, the motion to terminate was granted and I was permitted to file affirmatively (again) with USCIS, arguing this time the dire circumstances that would befall my clients in Haiti in consideration of the disability of the son and other details about the case involving the political situation in their home country.

Given these considerations, it is important for attorneys on appeal to take the record not as a given, as static, but something dynamic that can be researched and creatively explored at every level.  A part of the case that was not appreciated previously can and often does exist.  It may be a change of law that occurred while the case was winding its way through the lengthy and frustrating backlog (which stands of this writing at 1.6 million cases). It could be misdirection or mistaken advice by notarios or prior counsel. It can take the form of errors, made perhaps innocently and innocuously by interpreters that, if uncorrected, doom the respondent’s chances.

A further point: the retrospective stance of an appeal makes seeing background issues perhaps easier than seeing them in real time. What is really hard sometimes is seeing such issues as they happen in the context of the trial court setting. A key example of such issues that often get overlooked is burden of proof. We often see attorneys conceding deportability or inadmissibility, often overlooking key arguments or defenses. These are not really background but should be foreground issues, especially where the burden is on the government in most situations to prove by clear and convincing evidence the ground of deportability, now removability, has been proven. Other key arguments, for example, surrounding admissibility of statements of ICE officers, or others such as in the I-213 record of inadmissibility / deportability are also largely overlooked.

Finally, I want to mention in closing further fall-out from Niz-Chavez v. Garland and Pereira v. Sessions, and the latest developments surrounding the defective NTA issue. The defective NTA problem is probably one of the most underappreciated “background” issues because it implicates “jurisdiction,” or as the Board has left open, and it still remains to be decided, at the very least a “claims-processing” rule violation.

More specifically, for everyone who has an in absentia order, the rule in Rodriguez v. Garland, 15 F.4th 351, 354–56 (5th Cir. 2021), in the Fifth Circuit, and more recently, Singh v. Garland, (No. 20-70050), in the Ninth Circuit, has given us important opportunities to raise this as a crucial background issue.  Even though these cases are at odds now with Matter of Laparra, 28 I&N Dec. 425 (BIA 2022), there are two circuits finding that in absentia orders must be reopened where the NTA was defective under most circumstances.

Given these developments there is no question that the defective NTA issue is not going away anytime soon.   And if, as I think the Board will soon find, a defective NTA is indeed a claims-processing rule violation, at the very least, it will be important to raise such a “background” issue to reopen proceedings, obtain a remand, or otherwise preserve the procedural issue to ensure relief is available for many respondents.

 

*Clinical Professor, University of Houston Law Center; Individual Capacity and institution for identification only

KJ

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

Thanks, Geoffrey, for giving us such a timely and much-needed dose of your “accessible practical scholarship!” And, as always, thanks to Dean Kevin Johnson and ImmigrationProf Blog for getting this out to the public so quickly.

I’d pay particular attention to Geoffrey’s “red alert’ ❗️about defective NTA issues and the BIA’s flailing effort to again shun the Supremes and best practices in Matter of Laparra — a decision that has been “thoroughly roasted” by “Sir Jeffrey” Chase and me, among others.  See, e.g.,https://immigrationcourtside.com/2022/02/01/%f0%9f%97%bd%e2%9a%96%ef%b8%8fhon-jeffrey-chase-garland-bias-double-standard-strict-compliance-for-respondents-good-enough-for-govern/

Laparra is already in trouble in two Circuits at opposite ends of the spectrum — the 9th and the 5th. As Geoffrey points out, the potential of “counter-Laparra” litigation to force some due process back into both the trial and appellate levels of Garland’s dysfunctional “courts” is almost unlimited! 

But, litigation challenging Laparra and raising defective NTAs as a “claims processing rule” must be timely raised at the first opportunity. It’s a great example of “background issues” that talented NDPA litigators must “bring to the foreground” and use to save lives! It also shows the importance of great practical scholarship and meticulous preparation. Good lawyering wins!

Thanks again Geoffrey!

🇺🇸Due Process Forever!

🗽PROFESSOR GEOFFREY A. HOFFMAN @  U HOUSTON LAW REPORTS: Round Tablers ⚔️🛡Chase, Schmidt Among Headliners @ Recent Judge Joseph A. Vail Asylum Workshop!

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

https://www.law.uh.edu/news/spring2022/0207Vail.asp

Joseph A. Vail Asylum Workshop shares valuable immigration insights in the era of the Biden Administration

pastedGraphic.png

Retired Immigration Judge, U.S. Immigration Court and Former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt discusses growing immigration court backlogs.

Feb. 7, 2022 – More than 350 practitioners attended the annual Joseph A. Vail Asylum Workshop recently. The four-hour virtual event held on Jan. 28 was presented by the University of Houston Law Center’s Immigration Clinic and co-sponsored by Interfaith Ministries of Greater Houston. Interfaith Ministries joined this year to shed light on the plight of Afghani refugees who have settled in Houston since the government in Afghanistan collapsed and the Taliban takeover.

The goal of the workshop was to provide an update on immigration practices since President Biden took office. For example, while Biden halted the building of the border wall between the U.S. and Mexico and removed Migrant Protection Protocols (MPP) – where asylum seekers must remain on the Mexican side of the border while awaiting U.S. immigration court dates – a federal court order forced MPP to be reinstated. Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.

The first panel, moderated by Immigration Clinic Director Geoffrey Hoffman, explored the Biden Administration’s focus on Prosecutorial Discretion, Deferred Action for Childhood Arrivals (DACA), Migratory Protection Protocols (MPP), recent circuit court decisions, Afghan and Haitian case precedents, and immigration court backlogs.

“I hope you are emboldened to take a pro-bono client,” said Hoffman. “You can reach out to any of us on this call and use us as mentors.”

Panelist Magali Candler Suarez, principal at Suarez Candler Law, PLLC warned practitioners that Title 42 – a public health and welfare statue that gives the Center for Disease Control and Prevention the power to decide whether something like Covid-19 in a foreign country poses a serious danger of spreading in the U.S. – was being applied to Haitians in a racist manner.

“Many Haitians are being turned back at the border,” said Candler Suarez. “They are being denied the right to apply for asylum.”

The second panel, moderated by Parker Sheffy, a clinical teaching fellow at the Immigration Clinic, was a refresher on asylum, withholding of removal and CAT. Panelist Elizabeth Mendoza from the American Immigration Lawyers Association (AILA), which supports immigration attorneys in this work, spoke about challenges because of newly appointed immigration judges and evolving Covid practices.

“Unfortunately, things are in flux this month,” said Mendoza. “It’s not out of the ordinary to be given conflicting information.”

Well known former U.S. immigration judge, Jeffrey S. Chase, was the final panelist in this group and focused on the future of asylum in the U.S. “The Biden Administation issued a paper on climate change and migration,” said Chase. “[What] they were really talking about [though was] asylum and how climate change will impact that.”

A third panel offered insights on the use of experts in removal proceedings. UH Law Center Professor Rosemary Vega moderated the discussion which ranged from psychological experts to country experts and where to find them.

“The Center for Gender and Refugee Studies has a giant list of experts on many topics,” said panelist and UH Law Professor Lucas Aisenberg. “It’s the first place I go to when I’m working on a case.”

The workshop wrapped up with speakers from Interfaith Ministries of Greater Houston explaining what it is like to be a refugee from Afghanistan and how hard it has been to meet the needs of Afghan refugees that have arrived in the last year.

“Two years ago, we resettled 407 Afghan refugees,” said Martin B. Cominsky, president, and CEO of Interfaith Ministries of Greater Houston. “Since September 2021, we have resettled 11,081 refugees.” He implored practitioners on the call to help in any way they can.

The Joseph A. Vail Asylum Workshop has been held annually since 2014 in memory of the University of Houston Law Center Immigration Clinic’s founder. Since the clinic’s inception in 1999, it has become one of the largest in the nation, specializing in handling asylum applications for victims of torture and persecution, representing victims of domestic violence, human trafficking, and crime, and helping those fleeing civil war, genocide, or political repression. The clinic has served over 2,000 individuals who otherwise could not afford legal services.

For a full list of speakers at this year’s event, click here.

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

“Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.”

“Aimless Docket Reshuffling” is thriving @ Garland’s EOIR. Instead of gimmicks designed to “prioritize for denial and deterrence” (how about those “engineered in absentia dockets?”) why not work with the private bar and DHS to prioritize at both the Asylum Office and EOIR those with the most compelling cases from countries where refugee flows are well-documented?

For example, why not “prioritize” represented Uyghur and Afghani cases which should be “slam dunk” asylum grants? What’s the purpose of making folks who are going to be part of our society unnecessarily spend years in limbo? 

Will Ukrainians soon be in the same boat, asks Jason “The Asylumist” Dzubow on his blog?  https://www.asylumist.com/2022/01/27/preemptive-asylum-for-ukrainians/. Good question!

Is anybody in the Biden Administration actually planning for a possible human rights catastrophe, or just waiting for it to happen and then declaring yet another “migration emergency.”

Contrary to the uninformed view of many, backlogs aren’t just a workload problem or a hindrance to enforcement. There are huge human, psychological, economic, societal, and institutional costs with maintaining large uncontrolled backlogs. 

Most of those costs fall on the individuals with strong, likely winning cases who constantly are “orbited to the end of the line” to accommodate ever-changing, ill-advised, enforcement agendas and misguided “quick fix” initiatives. That’s so that DHS and DOJ can misuse the legal system as a deterrent — by prioritizing the cases they think they can deny without much due process to “send messages” about the futility of asking for protection or asserting rights in the U.S. legal system! And, those with strong cases (and their attorneys) “twist in the wind” as denials and deterrence are prioritized.

Trying to prioritize “bogus denials” (often without hearings, lawyers, time to prepare, or careful expert judging) also creates false statistical profiles suggesting, quite dishonestly, that there is no merit to most cases. These false narratives, in turn, are picked up and repeated by the media, usually without critical examination. 

Like the “Big Lie,” they eventually develop “a life of their own” simply by repetition. When occasionally “caught in action” by Article IIIs, the resulting backlog bolstering remands and “restarts” are inevitably blamed on the individuals (the victims), rather than the systematic Government incompetence that is truly responsible!

The truth is quite different from the DOJ/DHS myths. Over the years, despite facing a chronically unfair system intentionally skewed against them, some hostile or poorly qualified Immigration Judges and Appellate IJs, and wildly inconsistent results on similar cases before different judges (so-called “Refugee Roulette”), asylum seekers have won from 30% to more than 50% of the time when they actually receive an opportunity for a full, individual merits determination of their claims. 

But, getting that individual hearing has proved challenging in a system that constantly puts expediency and enforcement before due process, fundamental fairness, and human dignity! No matter how the Government tries to hide it, that means that there lots of bona fide asylum seekers out there whose cases are languishing in a broken system.

The creation of the USCIS Asylum Office was supposed to be a way of dealing with this issue through so-called affirmative applications and “quick approvals” of meritorious cases. But, during the Trump Administration even that flawed system was intentionally and maliciously “dumbed down,” “de-functionalized,” “re-prioritized,” and hopelessly backlogged. It was so bad that the Asylum Officers’ Union actually sued the Trump Administration for acting illegally.

More “gimmicks” like Garland’s failed “dedicated dockets” won’t fix his dysfunctional system. Fundamental leadership, personnel, substantive quality, procedural, and “cultural” changes are necessary to address backlogs while achieving due process and fundamental fairness at EOIR. Ironically, that was once the “EOIR Vision.” ⚖️ It’s too bad, actually tragic, Garland doesn’t share it!🤯

🇺🇸Due Process Forever!

PWS

02-08-22

☠️🤮👎🏽 3RD CIR. BADLY BUNGLES GUATEMALAN WOMEN PSG! — Chavez-Chilel v. Atty. Gen.

Woman Tortured
“Hey ladies, not every woman in Guatemala is hanging up there with you (yet), so what’s the problem,” says Circuit Judge Patty Shwartz of the 3rd. Cir.“ “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www2.ca3.uscourts.gov/opinarch/211180p.pdf

Chavez-Chilel v. Atty. Gen., 3rd Cir., 12-09-21, published

PANEL: SHWARTZ, PORTER, and FISHER, Circuit Judges.

OPINION: Judge Patty Shwartz

KEY QUOTE:

Chavez-Chilel’s proposed PSG lacks particularity. “[N]ot every immutable characteristic is sufficiently precise to define a [PSG],” id. at 552, and courts have concluded that a proposed PSG of all women in a particular country “is overbroad[] because no factfinder could reasonably conclude that all [of a country’s] women had a well-founded fear of persecution based solely on their gender,” Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (addressing Iranian women).8 Reasons to depart from this general rule are not present here. For example, in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Court of Appeals for the Eighth Circuit recognized the PSG of all Somali women because “all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of” female genital mutilation. Id. at 518; see also Mohammed v. Gonzales, 400 F.3d 785, 797–98 (9th Cir. 2005) (same); In re Kasinga, 21 I. & N. Dec. 357, 365–66 (B.I.A. 1996) (recognizing PSG of “young women” in a particular tribe in Togo due to pervasive practice of female

8 In Perdomo v. Holder, 611 F.3d 662, 668–69 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit disagreed with the BIA’s conclusion that “all women in Guatemala” was too broad a group to qualify as a PSG and remanded for further analysis. That case rested on the Ninth Circuit’s two-part definition of a PSG, which recognized any group “united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” Id. at 666 (quotation marks and emphasis omitted). This definition is not consistent with our Court’s three requirements for a PSG, see S.E.R.L., 894 F.3d at 540, so we decline to follow the reasoning in Perdomo.

14

         

genital mutilation). Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. Cf. A.R. 170–73, 182 (Chavez-Chilel’s testimony that she knew of no other women who suffered sexual or domestic violence); A.R. 232 (report explaining that one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay). Accordingly, while the size of the group standing alone would not disqualify a group from being a PSG, Cece v. Holder, 733 F.3d 662, 674–75 (7th Cir. 2013), Chavez- Chilel has failed to demonstrate that her proposed PSG is sufficiently particularized. Thus, her alleged fear of persecution based upon membership in such a group does not provide a basis for asylum. Because Chavez-Chilel cannot prove her asylum claim, she cannot meet the higher standard to obtain withholding of removal. See Blanco v. Att’y Gen., 967 F.3d 304, 315 (3d Cir. 2020). As a result, the IJ and BIA correctly denied her request for asylum and withholding of removal.9

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

What total poppycock Judge Shwartz spews forth in the faces of abused and targeted refugee women! Guatemalan women suffer one of the highest femicide rates in the world! https://cgrs.uchastings.edu/our-work/femicide-and-gender-based-violence. Indeed, that rate increased dramatically, by 31%, in 2021! https://www.riotimesonline.com/brazil-news/mercosur/central-america/femicides-increase-by-31-in-guatemala-during-2021/. While Judge Shwartz and her colleagues are incapable of recognizing truth, persecutors in Guatemala are highly capable of recognizing “women in Guatemala” as a group to target because of their gender!

This is a seriously flawed analysis. The court conflates psg “particularity” with nexus. Obviously, not every woman in Guatemala need fear persecution for some to be persecuted on that basis!

Suppose a few Jews escaped Nazi persecution. Does that mean Jews weren’t a PSG? Suppose only 10% of Poles were killed by the Nazis because of their ethnicity. Does that mean Poles were not a PSG? Suppose only 40% of Roma in a particular country are exterminated? Does that make Roma not a PSG? What if every Catholic in a particular country doesn’t have the exact same fear of persecution? Does that mean that Catholics don’t have a “well-founded fear”of persecution? Does that mean that Catholicism isn’t “one central reason” for persecution? Of course not, except in the uninformed minds of Judge Shwartz and her panel colleagues!

Obviously “women in Guatemala” is 1) fundamental to identity; 2) particularized (it clearly excludes non-women); and 3) distinct in Guatemalan society (and every other country in the world). Indeed, like family “women” and “men” are among the oldest, most fundamental, readily recognizable “particular social groups” in human existence!

I’m not the only critic of this outrageous misconstruction of asylum law!

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

“Sir Jeffrey” Chase of the Round Table 🛡⚔️ says:

The court completely misconstrued the standard for determining particularity:

Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. 

Particularity of course is a clear marker for group inclusion, and does not require evidence that everyone in the group is being targeted for persecution – compare, e.g. family or land owners.

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

Our friend and “practical scholar” colleague, Professor Geoffrey Hoffman of the University of Houston Law Center, adds:

Appears also to ignore the “once central reason” asylum rule in that the court is erroneously say gender must be “sole” reason (page 15, use of word “solely”)

So court got it wrong on 2 counts – not “all” women in Guatemala must be persecuted to form a valid PSG and gender need not be “sole reason” for the persecution.

Another colleague who practices in the 3rd Circuit sums it up succinctly and bluntly: “Awful!”

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

In addition to being legally wrong on a number of points, as pointed out by Dan Kowalski at LexisNexis Immigration Community, the court’s decision is horrible policy:

Note that the IJ DID grant CAT relief, and the government did NOT appeal that grant.

The “good news” is that the CAT grant prevents Ms. Chavez -Calel from being returned to torture and persecution in Guatemala. However, by misapplying asylum law, the court basically places her in an indefinite “limbo status.” 

She therefore is deprived of the right to fully integrate into our society by getting a green card and becoming a citizen. The court also strips her of any realistic path to exercising political rights! What sense does manipulating the law to intentionally create disenfranchised subclasses in American society make when better alternatives are available? 

To add insult to injury, in this decision the Third Circuit joined other Circuits and the BIA in giving DHS and EOIR a “pass” on their intentional decision not to comply with the INA requirements for issuing a Notice to Appear (“NTA”) to commence removal proceedings. 

Obviously, these “ivory towerists” have never experienced the actual mess that occurs when overworked, understaffed Immigration Court clerks manually mail out subsequent notices, by regular U.S. Mail, using addresses haphazardly entered by DHS personnel in the chaos that often exists at the border and upon release from DHS detention. 

Perhaps, in their exalted positions, these Article IIIs no longer have to rely on the ever-deteriorating service of the U.S. Postal service. This morning, I delivered a “mini-stack” of mis-delivered U.S. Mail to my next door neighbor. We seem to get mis-delivered mail on a weekly basis. And, I live in a reasonably “upscale” neighborhood, if I do say so myself — one where folks know all the neighbors and take the time to “re-route” misdirected mail. Think there are places America where that doesn’t happen?

What do these judges think “delivery accuracy” is in the communities and situations where most Immigration Court respondents live? Maybe, there was a good reason why Congress required the NTA, which, unlike subsequent EOIR notices, is often served personally, to contain accurate information on the time and place of their hearing.

Maybe, we need Federal Judges who live in the “real world” rather than abstract one they have constructed where the lives of migrants are at issue! Maybe, we need more Federal Judges who have seen and experienced the consequences of “poor and uninformed judging” on immigrant and ethnic communities in the U.S.!

At a time when the Supremes’ righty majority appears to be intent on dismantling half a century of established women’s rights, the Third Circuit’s wrong-headed decision is a further “body blow” to both the humanity and human rights of women throughout the world!

 Judge Schwartz is an Obama appointee. Her panel colleagues are GOP appointees. We deserve better from our life-tenured Federal Judiciary! Much, much better!

🇺🇸Due Process Forever!

PWS

12-10-21

BIA GOING FOR “TRIFECTA?” — Already Rebuked Twice By Supremes For Ignoring Statutory Definition Of “Notice To Appear,” BIA Chooses To Snub High Court Again — Matter of  Arambula-Bravo

Obviously, THESE are the practical scholar/immigration experts who belong on the BIA:

Kit Johnson
Kit Johnson
Associate Professor of Law
University of Oklahoma Law School
Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

 

https://lawprofessors.typepad.com/immigration/2021/09/bia-distinguishes-niz-chavez-pereira-find-no-jx-problem-with-nta-lacking-timedate.html

Professor Kit Johnson reports for ImmigrationProf blog:

Thursday, September 23, 2021

BIA Distinguishes Niz-Chavez, Pereira, Finds No Jx Problem With NTA Lacking Time/Date

By Immigration Prof

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The Board of Immigration Appeals has issued a decision in Matter of  Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). Here is the summary:

(1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.

(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).

In my 2018 article, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, I reached the exact opposite conclusion.

I am hardly the only one to argue that such an NTA should deprive the court of jurisdiction. Immprof Geoffrey Hoffman (Houston), frequent contributor to this blog, submitted an amicus brief to the BIA on this case arguing that an NTA without time or place information is “defective” under Niz-Chavez and cannot be cured by the later issuance of a Notice of Hearing.

Now the waiting game for SCOTUS intervention begins again. I’m hoping for another scathing opinion by Justice Gorsuch. His Niz-Chavez decision was fire.

-KitJ

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INA section 239(a) defines a Notice to Appear, the document used to initiate a removal proceeding in Immigration Court, as including, among other statutory requirements: “G)(i) The time and place at which the proceedings will be held.” Could not be clearer!

The requirements of section 239(a) are hardly onerous. Indeed, several decades ago, the Government had developed an “interactive scheduling system” that allowed DHS to specify the exact time, place, and date of a respondent’s initial Master Calendar hearing in Immigration Court.

However, rather than expanding and improving that system, DHS and EOIR decided to cut corners to accommodate the “uber enforcement” agendas pushed by Administrations of both parties over the past two decades. Their “haste makes waste, good enough for Government work approach” led them to ignore the requirements for a proper NTA and instead issue “piecemeal notices.” 

This, of course, increased the unnecessary workload for already-stressed, overwhelmed EOIR Immigration Court clerks, resulted in many more defective notices, more unnecessary bogus “failures to appear,” more improper “in absentia removal orders,” more Motions to Reopen those wrongfully issued orders, and more appeals from improper failures to grant such motions. It also sent more of these preliminary matters into the Circuit Courts for judicial review.

Basically, it’s a microcosm of how an unconstitutional, non-independent “wholly owned court system” “pretzels itself” to accommodate DHS enforcement, misconstrues the law, and attempts to legitimize “worst practices” to please its political overlords, thereby creating endless and largely avoidable case backlogs — now at an astounding 1.4 million cases!

Even worse, when the backlogs finally capture public attention and “hit the fan,” EOIR, DHS, and DOJ disingenuously attempt to shift the blame and the consequences for their failures onto the VICTIMS: respondents and their long-suffering, often pro bono, attorneys! The incompetents at EOIR then cut even more corners and issue more bad precedents misconstruing the law in an attempt to cover up their own wrongdoing and that of their political masters. The latter’s understanding of how to run an efficient, due-process oriented, fair and impartial court system could be put in a thimble with space left over!

The vicious cycle of unfairness, injustice, and incompetence at EOIR continues endlessly, toward oblivion.

As Kit cogently points out, better interpretations, ones that complied with the statute and could be tailored to achieve practical solutions were available and actually submitted to the BIA. The BIA, as usual, brushed them off in favor of trying to please DHS and avoid both the statutory language and the Supremes’ clear direction.

So, something that a properly comprised BIA, composed of true progressive immigration experts and practical scholars, could have solved in a legal and practical manner, will undoubtedly head to the Supremes for a third time. We might not know the result for years, during which the BIA’s bad interpretation will generate additional potential backlog as well as unjust removals.

So, our Round Table ⚔️🛡can start perfecting our Arambula-Bravo amicus briefs now!

It’s time for a change at EOIR!

🇺🇸Due Process Forever!

PWS

09-25-21

🏴‍☠️☠️⚰️⚖️ MAKING THEIR CASE: The Competition For “America’s Most Dangerous Court” 🏆🤮 Is Fierce, But The Far-Right Scofflaw Fifth Circuit Is Coming On Strong! — The Righty Supremes Fight Back With Gross Abuses Of “Shadow Docket” — Is There Another “Top Contender” Out There Operating Below The Radar Screen?

These two op-eds make compelling cases for the 5th Circuit rivaling the Supremes as the most scofflaw, out of control, and dangerous court in America! But, hey, is there a “dark horse” in this righty “race to the bottom?” 🐴 (Curiously enough, “owned” and “trained” by Biden-Garland Stables!)

First, let’s hear from my friend, NDPA Stalwart, Houston Law Immigration Clinic Director, Professor Geoffrey Hoffman:

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

CAT a “dead letter” in the Fifth Circuit? I respectfully dissent

 

By Geoffrey A. Hoffman

 

This week a panel of the Fifth Circuit issued Tabora Gutierrez v. Garland, interpreting the Convention Against Torture’s (CAT’s) state action requirement so restrictively that it led the dissenting judge to call CAT a virtual “dead letter” in most cases (in the Fifth Circuit, at least).

 

In this piece, I want to consider this dire prognostication and also think about what it may mean for future practice – at least for those of us in the Fifth Circuit.

 

Two panel members found that petitioner failed a key requirement for relief: that the government in Honduras “consented or acquiesced” to the torture. In dissent, Judge W. Eugene Davis remarked, “I agree with the IJ, the BIA, and the majority that [petitioner] will likely be tortured by MS-13 gang members. . .[but] I read the record to compel a conclusion that the torture will be with the acquiescence of a public official.” According to Judge Davis, the majority raised the bar so high regarding this requirement under CAT that “for most if not all” people CAT will be out of reach, if they are from countries with (merely) corrupt policy or police without the will or courage to protect them from brutal gangs.  While I agree with Judge Davis, the fact is CAT need not be a “dead letter” in the Fifth Circuit.

 

I was moved to comment on another split panel decision previously in the Fifth Circuit in Inestroza-Antonelli v. Barr, see my prior post here, and I am similarly moved to write about this present decision.

 

Significantly, the majority here carefully acknowledges up front that the BIA and IJ below found petitioner “likely to be tortured or killed” if returned to Honduras, and even catalogued the horrible injuries he had already suffered, mentioning “gruesome photos” that are part of the record in the case.

 

Because I think the majority erred, and would agree with most of what the dissenting judge says, let me address three issues where I think the majority got it wrong: (1) what it means for a record to “compel” a different conclusion on appeal; (2) what it means for a government to consent or acquiesce to torture and (3) the notion that Petitioner waived his argument about the correct standard of review merely by failing to bring it up in a motion to reconsider.

 

I address all three of these points below.

 

First, the majority importantly conceded in its opinion that the police “failed to investigate” petitioner’s injuries. However, because the Board and IJ interpreted these “failures” of the police as “better explained” by the fact the petitioner “was unable to disclose the specific identity of any of his attackers” this showed the police did not “willfully ignore” the attacks. The majority reasoned that the “evidence” did not “compel” a contrary conclusion and therefore the IJ’s findings, adopted by the BIA, were considered “conclusive.”

 

I am struck here by the notion that just because the BIA and IJ had inserted their own explanations for the unrebutted record evidence showing lack of any police action that this must have meant (according to the majority) that the appellate court was constrained to accept this explanation and would not disturb the lower tribunal’s interpretation of the evidence.

 

Such a reading of the word “compel” means that judges can have an “out” anytime they want to rubber stamp any decision of the Board, all they have to do is say the explanation offered characterizing the evidence in one way or another was good enough and must not be disturbed. But this is a very troubling proposition.

 

Take, for example, the present case where the supposition on the part of the BIA and IJ was that the petitioner was somehow at fault for not being able to identify his attackers by name. Think about that for a minute…Police are not acquiescing and not at fault and should not be held to have “turned a blind eye” because the victim was unable to identify his attackers.

 

But this does not make sense.

 

Such a blame-the-victim mentality goes against the motivation and underlying rationale behind other federal types of relief immigrants have available, for example, U visas for crime victims, VAWA, T visas, etc., premised in many cases on the victim’s cooperation with law enforcement and their investigation. Just because a victim does not know the exact identities of their attackers does not disqualify them from relief. Would that be a reasonable interpretation for example of the U visa statute and attendant regulations?

 

In addition, let’s consider the use of the “compel” standard for a minute and where it came from exactly. This standard, as acknowledged by the majority, comes from a previous case, Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006), among other cases.  Chen in turn cites 8 USC 1252(b)(4)(B) and emanates from the Supreme Court’s famous decision, INS v. Elias-Zacarias, 502 U.S. 478 (1992), authored by Justice Scalia.

 

Chen was a case about a Chinese petitioner who converted to Christianity after entry into the U.S. and so her applications did not rely on past persecution but a well-founded fear of future persecution based on religion. The IJ in the former case found that there were “many Christians in China” and that Chen’s claims of future persecution were allegedly “highly speculative.”  The facts of Chen and the current case relating to police inaction in Honduras could not be further apart. Moreover, the Fifth Circuit in Chen was not considering past persecution, as here, but the more difficult to prove “future persecution” and well-founded fear standard.

 

Similarly, Justice Scalia in Elias-Zacarias was concerned about proof supporting a political opinion claim.  In that case, the Supreme Court found that the petitioner could not produce evidence “so compelling” that no reasonable factfinder could fail to find the requisite fear of persecution on account of political opinion.  The “so compelling” language has been used by many courts to deny asylum on many other grounds throughout the past decades and has not been limited to political opinion claims.

 

But the reliance in the present case for the “compel” standard on the statute in question, 8 USC 1252(b) here is misguided. The statute states in pertinent part as follows:  “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .”  But the “consent and acquiescence” determination under CAT is not a determination of “administrative facts” but is certainly a mixed question of law and fact.  As such, the entire structure of the “compel” standard should not have been applied but instead de novo review applied.

 

And this brings me to the practice pointer that this case so unfortunately stands for. Although on appeal before the circuit court the issue of standard of review was raised by petitioner, it was rejected by the majority on the theory that he had to have filed a “motion to reconsider” before the Board to preserve the issue for appellate review.

 

This waiver argument has always seemed to me a weak and tenuous one.

 

For example, what if the petitioner (i.e., the respondent before the BIA) argued in his brief to the Board that the correct standard of review was de novo due to the mixed question raised by a very complicated “consent or acquiescence” determination under CAT, and courts have so held, but the BIA decided to just rubber stamp the IJ and refused to overturn the IJ’s finding based on clear error. Wouldn’t that have preserved the issue?  Why is there a need for a litigant to then file a motion to reconsider after  the fact to preserve an issue which had already been preserved?  To make matters worse it appears Mr. Tobora Gutierrez appeared pro se, see page 3 of the Fifth Circuit majority decision, at least initially. The decision does not reveal if he had appellate counsel before the BIA. But if he did not it would be an especially onerous requirement to impose an “after the fact” requirement that a litigant must file a “motion to reconsider” to preserve an issue for appellate review, especially if he is unrepresented.

 

All of that said, the practice take-away here is: (1) everyone must file a very carefully drafted and thorough motion to reconsider on all issues that could be in any way (mis-)interpreted to be subject to waiver so you preserve all issues for review before the circuit courts;  and (2) everyone should read Judge Davis’ cogent and reasoned dissenting opinion, which hopefully will be followed instead of the majority’s strained application of the “compel” standard.   Judge Davis was right: the evidence does compel a different outcome. Judge Davis does a wonderful job also of distinguishing the prior case law in this area and showing how Mr. Tobora Gutierrez’s case is fundamentally different. As he says, “if the egregious facts of this case are not sufficient to support a finding of public-official acquiescence, CAT relief will be a dead-letter to most if not all individuals who live in countries where the police are corrupt or simply do not have the will or courage to protect them from brutal gang attacks.”

 

Judge Davis is right, this is a most troubling decision but not just for the reason he provides.  It is troubling for the further reason that the majority applies the wrong legal standard here, the “compels” standard versus a de novo review. The majority also leaves the door open for “deferred action,” for this sympathetic and horrendous case, although it declines to recommend it. Most importantly, it also leaves the door open for de novo review, in future cases, at least where those litigants are perceived to have preserved the issue. Litigants can do this by filing a motion to reconsider with the BIA, then filing (another, second) petition for review when the motion to reconsider is denied, and then (following the procedure mandated by section 1252) consolidating the two cases.

 

(Institution for identification only)

Geoffrey Hoffman

Clinical Professor, UHLC Immigration Clinic Director

Let’s not forget that Garland’s DOJ defended this grotesque miscarriage of justice. In a grim way, Geoffrey’s “practical scholarship” ties in nicely with Ruth Marcus’s recent op-ed in WashPost on the righto-wacko 5th Circuit’s dangerous assault on American justice:

Ruth Marcus
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.

https://www.washingtonpost.com/opinions/2021/08/31/5th-circuit-is-staking-out-claim-be-americas-most-dangerous-court/

Opinion: The 5th Circuit is staking out a claim to be America’s most dangerous court

Opinion by Ruth Marcus

August 31 at 6:37 PM ET

The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process.

The 5th is arguably the most conservative among the country’s dozen appeals courts. It inclined in that direction even before President Donald Trump managed to install six nominees. And they constitute quite a bunch: Stuart Kyle Duncan, who said the Supreme Court’s 2015 ruling establishing a right to same-sex marriage “imperils civic peace” and “raises a question about the legitimacy of the court.” Cory Wilson, who tweeted about Hillary Clinton using the hashtag #CrookedHillary, called the Affordable Care Act “illegitimate” and said he supported overturning Roe v. Wade. James C. Ho, who issued a concurring opinion lamenting the “moral tragedy of abortion.”

How conservative is the court, where 12 of 17 active judges were named by Republican presidents? “As conservative a federal appeals court as any of us have seen in our lifetimes,” says Stephen I. Vladeck, a law professor at the University of Texas, noting that even as the circuit’s conservatives tend toward the extreme end of the spectrum, its liberals aren’t all that liberal.

One measure: During each of the last two Supreme Court terms, with conservative justices firmly in the majority, the high court has reviewed seven cases from the 5th Circuit. It reversed 6 of 7 decisions in the 2019-2020 term and 5 of 7 in 2020-2021.

These included the appeals courts’ rulings striking down the Affordable Care Act and upholding the constitutionality of a Louisiana abortion law, identical to a Texas statute the justices had tossed out several years earlier — another 5th Circuit special reversed by the high court. If you thought the appeals court judges would have learned their lesson the first time, you don’t know the 5th Circuit.

Texas can ban the abortion procedure most commonly used to end second-trimester pregnancies, a federal appeals court ruled on Aug. 18. (Reuters)

The circuit’s latest shenanigans involve, unsurprisingly, abortion, and Texas’s latest attempt to eviscerate abortion rights. This Texas law, which goes into effect Wednesday, is both blatantly unconstitutional (it purports to prohibit abortion once there is a detectable fetal heartbeat, around six weeks into pregnancy) and an audacious effort to evade judicial review (it leaves enforcement of the ban up to private vigilantes, not state officials.)

In this effort to end-run and effectively overturn Roe v. Wade, the 5th Circuit has already proved itself an eager co-conspirator. Texas abortion clinics filed suit in federal court challenging the law and seeking to block it from taking effect. A federal judge had scheduled a hearing on whether to grant such an injunction.

But on Friday a panel of the 5th Circuit — two Trump judges and one Reagan appointee — issued an extraordinary order preventing the district judge from going ahead with the hearing, thus letting the law take effect in the interim — all this even as the appeals court refused to speed up its consideration of the case. In a sign of their desperation, the clinics appealed that action to the Supreme Court, not exactly a friendly venue these days for abortion rights.

. . . .

Read the rest of Ruth’s op-ed at the link.

But, the right-controlled Supremes aren’t going quietly into the night in this competition. The right to a reasoned decision from a fair and impartial decision-maker is fundamental to Constitutional due process — except at the Supremes. The righty majority now employs the “shadow docket” to avoid explanation and accountability for some of it’s most outrageously scofflaw decisions! Many of these have hurt or even killed migrants. David Leonhardt @ NY Times explains:

David Leonhardt

Davide Leonhardt
Journalist
NY Times
PHOTO: Wikipedia

Rulings without explanations

The Supreme Court opinion allowing Texas to ban nearly all abortions was different from most major rulings by the court.
This one came out shortly before midnight on Wednesday. It consisted of a single paragraph, not signed by the justices who voted for it and lacking the usual detailed explanation of their reasoning. And there had been no oral arguments, during which opposing lawyers could have made their cases and answered questions from the justices.
Instead, the opinion was part of something that has become known as “the shadow docket.” In the shadow docket, the court makes decisions quickly, without the usual written briefings, oral arguments or signed opinions. In recent years, the shadow docket has become a much larger part of the Supreme Court’s work.
Shadow-docket rulings have shaped policy on voting rights, climate change, birth control, Covid-19 restrictions and more. Last month, the justices issued shadow decisions forcing the Biden administration to end its eviction moratorium and to reinstate a Trump administration immigration policy. “The cases affect us at least as much as high-profile cases we devote so much attention to,” Stephen Vladeck, a University of Texas law professor, told me.
Shadow-docket cases are frequently those with urgency — such as a voting case that must be decided in the final weeks before an election. As a result, the justices don’t always have time to solicit briefs, hold oral arguments and spend months grappling with their decision. Doing so can risk irreparable harm to one side in the case.
For these reasons, nobody questions the need for the court to issue some expedited, bare-bones rulings. But many legal experts are worried about how big the shadow docket has grown, including in cases that the Supreme Court could have decided in a more traditional way.
“Shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters,” Moira Donegan wrote in The Guardian. “In recent years the court has largely dispensed with any meaningful application of the irreparable harm standard.”
Why the shadow docket has grown
Why have the justices expanded the shadow docket?
In part, it is a response to a newfound willingness by lower courts to issue decisions that apply to the entire country, as my colleague Charlie Savage explains. By acting quickly, the Supreme Court can retain its dominant role.
But there is also a political angle. Shadow-docket cases can let the court act quickly and also shield individual justices from criticism: In the latest abortion case, there is no signed opinion for legal scholars to pick apart, and no single justice is personally associated with the virtual end of legal abortion in Texas. The only reason that the public knows the precise vote — 5 to 4 — is that the four justices in the minority each chose to release a signed dissent.
Critics argue that judges in a democracy owe the public more transparency. “This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Nicholas Stephanopoulos, a Harvard law professor, has said. “If courts don’t have to defend their decisions, then they’re just acts of will, of power.”
During a House hearing on the shadow docket in February, members of both parties criticized its growth. “Knowing why the justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public’s trust in the court’s integrity,” Representative Henry Johnson Jr., a Georgia Democrat, said. Representative Louie Gohmert, a Texas Republican, said, “I am a big fan of judges and justices making clear who’s making the decision, and I would welcome reforms that required that.”
The shadow docket also leaves lower-court judges unsure about what exactly the Supreme Court has decided and how to decide similar cases they later hear. “Because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements,” writes William Baude, a University of Chicago law professor and former clerk for Chief Justice John Roberts. Baude coined the term “shadow docket.”
Six vs. three
The court’s six Republican-appointed justices are driving the growth of the shadow docket, and it is consistent with their overall approach to the law. They are often (though not always) willing to be aggressive, overturning longstanding precedents, in campaign finance, election law, business regulation and other areas. The shadow docket expands their ability to shape American society.
The three Democratic-appointed justices, for their part, have grown frustrated by the trend. In her dissent this week, Justice Elena Kagan wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.” In an interview with my colleague Adam Liptak last week, Justice Stephen Breyer said: “I can’t say never decide a shadow-docket thing. … But be careful.”
Roberts also evidently disagrees with the use of the shadow docket in the Texas abortion case. In his dissent, joining the three liberal justices, he said the court could instead have blocked the Texas law while it made its way through the courts. That the court chose another path means that abortion is now all but illegal in the nation’s second-largest state.
The justices are likely to settle the question in a more lasting way next year. They will hear oral arguments this fall in a Mississippi abortion case — the more traditional kind, outside the shadows — and a decision is likely by June.

Read more from David in “The Morning” e-mail from the NYT.

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

Abrogating a treaty, intellectual dishonesty, neutering Federal statutes and regulations, scoffing at Constitutional due process, disregarding decency and human life (at least “life after birth”), AND illegally sending another human back to be tortured to death is indeed a “hard act to follow” and makes the 5th a serious contender. But, remember where this “opportunity to dump on migrants” came from!

Immigration practitioners will tell you never to underestimate the sloppiness, lack of expertise, irresponsibility, disdain for due process, and disregard for human lives that has become institutionalized at Garland’s “Miller Lite” captive appeals “court,” the BIA! And, like the Supremes and unlike the 5th Circuit, the BIA has nationwide jurisdiction and sets national precedents. But, unlike the Supremes, who decide fewer than 100 cases in an average year, the BIA assembly line charms out 20,000 to 30,000 cases annually through its defective processes, and it’s lousy, one-sided, anti-immigrant precedents and reactionary guidance that destroy thousands of lives and futures in Immigration Court every day!

So, when it comes to worst court of today, don’t count out the BIA!

As described by Charlotte Klein and former Acting SG Neal Kaytal @ Vanity Fair, the extremist right GOP is now fulfilling it’s long-promised “gruesome blueprint” to overthrow liberal democracy and perpetuate far-right, minority, authoritarian, in many ways neo-Nazi rule in America. https://www.vanityfair.com/news/2021/09/gruesome-blueprint-texas-assault-on-abortion-rights-could-have-snowball-effect

Charlotte Klein
Charlotte Klein
Staff Writer
Vanity Fair
PHOTO: Twitter

The “Commanding Generals” of this effort are unprincipled, far-right GOP jurists. Their initial targeted victims are, of course, the usual vulnerable suspects: migrants, asylum seekers, women, voters of color, transgender kids, the poor, union members, etc. But, eventually, all of us who reman true to liberal democratic values will be targeted for some kind of punishment. Immigration “led the way” in the “Dred Scottfication of the other” by the Supremes at the behest of  the Trump kakistocracy. But, don’t think that’s where this heinous resuscitation of one of the worst cases in American jurisprudence will end!

Meanwhile, this latest phase of the assault has unleashed the usual Dem arsenal of feckless weaponry, including:

  • Statements of outrage untied to realistic possibilities; 
  • Largely meaningless public demonstrations that are “media events” and not much else; 
  • Idle threats of reprisals; 
  • A barrage of op-eds decrying that the fringe radical right and their relatively unpopular agenda has once again outflanked liberals who represent the views and values of the majority;
  • Statements of fact that have no material effect (public support for the complete elimination of abortion, al la Texas, the 5th, and the Supremes holds steady at 8%, while a large majority of Americans favor abortion in some form or another — explain how that has made a difference — also, does anybody really think that these right wingers give a fig that many women will die from illegal abortions and others will be saddled with unwanted children — the only part of human life that creates much compassion or empathy for this righty gang is that which occurs prior to birth);
  • Appeals to precedent, fairness, decency, reasonableness, confirmation promises, and respect for the law addressed to a party and its jurists who value none of these things if they get in the way of their authoritarian agenda.

But, Dems, here’s a better idea! For once, why not try a different approach and actually work within what you DO control and CAN change? Something that will showcase the positive attributes of honest, expert, progressive judging while developing best practices and saving lots of  lives in the process. What do you have to lose, Dems? Can actually doing something to combat right-wing control of the judiciary rather than just impotently raging against it produce a worse result than you have already achieved — even when controlling the Executive, House, and Senate? 

There is not much in the immediate future that Biden and the Dems can (and are willing to) do to change the composition and tenor of the Supremes and the 5th Circuit. But Biden and Garland have complete control over the “Miller Lite” BIA and the Immigration Courts!

A new, well-qualified, BIA comprised of progressive expert judges unswervingly committed to scholarship, quality, due process, respect for migrants and their attorneys, and correct results could (and should) be installed by now. But, disgracefully, it isn’t! Progressives need to hold Biden’s and Garland’s feet to the fire until they create the positive change they promised, but have not delivered!

Then, once a new BIA is in place, go to work on re-competing all Immigration Judge jobs on a merit basis, incorporating key progressive values and real-life experiences, and also involving input from practitioners and outside experts in the area. Create a better progressive Federal Immigration Judiciary and let it lead the way to restoring due process, best practices, efficiency, humanity, fundamental fairness, and integrity to our broken immigration system!

Humanity is suffering! Garland must pull the plug 🔌 on the “BIA Clown Show” 🤡 before it kills ⚰️ anyone else! Pull the BIA from the “Most Dangerous Court In America Competition” before they can “win” it. A “win” for the BIA would certainly be a “loss” for America!

🇺🇸Due Process Forever! Bad Judges, Never!  

PWS

09-03-21

C-SPAN: PROFESSOR GEOFFREY HOFFMAN EXPLAINS FAILED SOUTHERN BORDER POLICIES & LOUSY JUDICIAL DECISIONS ENABLING THEM! — Watch Geoffrey Patiently Rebuff A Slew Of Uninformed Nativist “Call-Ins” — Truth Is, MPP & Illegal Use Of Title 42 Resulted In Over 6,300 Violent Incidents Of “rape, kidnapping, extortion, human trafficking and other assaults against migrants who were deported to Mexico or people who were prevented from seeking asylum at the U.S. border under Title 42!” — More “Inconvenient Truth” For Ill-Informed (& Rude) Nativists: Immigrants Of All Types, Including Undocumented, Are Keeping American Society & Our Economy Afloat & Are Our Hope For The Future!

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

Here’s the video of Geoffrey (approx. 40 minutes):

https://www.c-span.org/video/?514241-3/washington-journal-geoffrey-hoffman-discusses-biden-immigration-policy&live

Here’s the ugly truth about what two Administrations and some really bad Federal Judges have done to our vulnerable fellow humans seeking legal refuge at our borders:

https://www.nbcnews.com/news/latino/-live-fear-6000-migrants-mexico-violently-attacked-rcna1783

I refer to this as the “harsh reality that the nativist Ted Cruz ‘let ‘em enjoy the beaches in Cancun’ crowd doesn’t get!”

And, here’s the truth about migrants helping our nation thrive and who are a key component of our hopes for the future. Progressives and their allies must double down and act upon these truths to combat the type of ridiculous, dangerous, anti- American nativist lies and myths that were driving some of the misinformed callers, also pushed by the “insurrectionist wing” of the GOP:

https://urldefense.com/v3/__https://www.bushcenter.org/catalyst/state-of-the-american-dream/shi-undocumented-workers-rebuilding-america.html__;!!LkSTlj0I!RcKFXMY1liB3z78Z7LQwEgVggJK2JUSoGlwyO74myivmVNhy6BCynOqMpdYVknPMoicnXQ$

Significantly, this article came from the George W. Bush Institute, hardly a “left wing think tank.” 

“Geoffrey’s 40 minutes” shows that there is, indeed, an imminent threat to American democracy, leadership, and future prosperity out there. But, it definitely does not come from migrants! A nation where about 98% of the population came from immigrant lineage can’t afford to turn our backs on today’s immigrants.

🇺🇸Due Process Forever!

PWS

08-28-21

⚖️👍🏼😎LAW YOU CAN USE: Professor Geoffrey Hoffman Tells Us How To Use Niz-Chavez v. Garland To Fight DHS/EOIR’s “Fake Date NTA” Travesty!

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

https://lawprofessors.typepad.com/immigration/2021/05/another-twist-on-niz-chavez-by-geoffrey-hoffman.html

Geoffrey writes on ImmigrationProf Blog:

Geoffrey Hoffman previously has blogged about the recent Supreme Court decision in Niz-Chavez v. Garland.  Here is the sequel.

Another Twist on Niz-Chavez . . . by Geoffrey Hoffman

A fascinating twist on the factual scenario in Niz-Chavez is what to do if your client had an NTA with a so-called “fake date.” The “fake date” problem is one you will remember well if you practice immigration law before EOIR, and it garnered national attention in 2019 when ICE issued these fake dates for thousands of immigrants, many of whom showed up in court only to find that there was nothing on any judge’s docket to indicate they were scheduled for a hearing that day.  Reports of fake dates were prevalent in Dallas, Orlando, Miami, Seattle, and I am sure other places as well. See news articles such as this one. In addition, and as a separate matter, there was a well-known so-called “parking date” (November 29) issued on thousands of NTAs and that was also never a “real date” as everyone knew.

There is an interesting theory about why the “fake dates” were issued in the first place:  that the government was trying to respond to Pereira v. Sessions itself.  Despite its argument in federal court to try to restrict Pereira as much as possible, in practice ICE tacitly was affirming, so the argument goes, that in Pereira the Supreme Court had defined, as we have argued all along, what is and what is not a proper and valid NTA. In an effort to immunize itself from responsibility for defective NTAs without any time or place of hearing, ICE thought it might make sense to input “fake dates” in their NTAs, thus (at least superficially it would seem) immunizing itself from the argument that the NTAs were defective for “lack” of a real date and place. Then the “real date” – according to the argument – could be issued as a follow-up in the form of a notice of hearing by EOIR.

The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes” – and I will discuss in the rest of this article why this should be the case and why it should not come as a surprise for several reasons.

It is arguably a much stronger case for the application of Niz-Chavez because the issuance of a “fake date” that was never intended to be used by EOIR in any way is affirmatively wrong. It is not just mere negligence by leaving “TBA” with a blank date and place of hearing on the NTA.  ICE should not be able to hide behind an NTA where the information is filled in on the NTA but the information is patently false and made up or fabricated.  Just as an asylum seeker who fabricates a date or other information on their forms cannot benefit from such information in applying for relief before the court, the government should get no benefit either from their incorrect and misleading actions.  The counter-argument from the government will be that the NTA was valid “on its face” since it had some “date and place” in the document and therefore (a) stopped time for cancellation purposes and (b) conferred jurisdiction because it was “facially” valid.

This counter-argument is flawed. To embrace such a rationale would exalt form over substance. It also would allow an agency to game the system. It would also defeat the very mechanism that the Supreme Court set out in Pereira and now Niz-Chavez. Respondent should be entitled to reopen their proceedings in all “fake date” cases since a valid NTA was not filed in the immigration court.  The only remaining issue will be proof.  The respondent and his or her attorney will have to prove there was no hearing that was actually held on that day. If no hearing existed at all, then the stop time rule should not apply and the fake NTA cannot be “cured” by a subsequently issued notice by a different agency, that is EOIR, as per Niz-Chavez.

Finally, in reopening a client’s case it would be helpful  if there were  a showing of some effort on the part the respondent to check.  Proof may be difficult and EOIR FOIA and other investigation will be important. Ideally, the client or the their attorney or both went to court but no hearing was on the docket that day, and there was an effort to check that was documented in some way. If there never was receipt of the NTA at all, whether containing a fake date or not, and an in absentia order was issued, then the question becomes whether jurisdiction could have vested at all in such a case.  As I have argued, if the NTA is defective it cannot result in the vesting of jurisdiction. A fake date and place arguably cannot confer jurisdiction, even if the NTA was filed with the court.  Since there was no hearing actually scheduled the NTA should be found defective under Pereira and Niz-Chavez.

K[evin] J[ohnson]

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

Sure sounds to me like ‘affirmative misconduct” by the USG that should stop them from relying on the “fake dates. In the “old days,” INS actually used to settle potential “affirmative misconduct” cases, rather than litigate.

By contrast, today’s DOJ seems perfectly willing shamelessly to defend a wide range of legally and ethically questionable conduct and then “blow off” criticism from the Article III Judiciary. Recently, a frustrated U.S. District Judge referred to Bureau of Prisons officials as “idiots.”

One might have thought that would have spurred some type of apology and corrective action from the DOJ. But, that doesn’t seem to have registered with Garland. He just keeps rolling along with Barr’s “Miller Lite” appointments while dissing advice from progressives who actually helped put him in his current job. About the only thing you can count on from Dems is that when it comes to progressive immigraton reforms and EOIR, they’ll blow it!

Thanks, Geoffrey, for your timely and creative “practical scholarship.” Of course with better leadership, the Biden Administration could solve this problem without protracted litigation that often takes years and produces inconsistent results before the Supremes or Congress can resolve them. In the meantime, lives unnecessarily are ruined and the system becomes more inefficient and unfair.

Garland should appoint progressive practical scholars like Geoffrey to the BIA and senior management at EOIR, OIL, OLP, and the SG’s Office and let them “lead from above” — rather than having to fight bad interpretations and worst practices from the outside. 

In this case, the DHS/EOIR “fake date policy” was both fraudulent and unethical. Remember that some folks actually showed up at Immigration Court buildings, often with families in tow, after having traveled hundreds of miles, @ 3:00 AM on Sunday mornings (or on a Federal Holiday or some other bogus date) only to find out that the “joke” was on them.

And, let’s not forget folks, that thanks to the BIA’s permissive attitude (when it comes to the Government, but not with individual rights), under the now “being phased out” “Remain in Mexico Program” (a/k/a “let “em Die In Mexico”), folks basically got NTAs with the equivalent of this: “Maria Gomez, somewhere on some Calle in Tijuana, Mexico.” But, the BIA said that  this was basically “good enough for Government work.”

We should also remember that the Fifth Amendment’s Due Process Clause guarantees the individual’s rights against the Government, not the other way around! But, you sure wouldn’t know that from reading BIA and AG precedents issued under the Trump kakistocracy.

Meanwhile, IJs and the BIA under Garland continue to “in absentia” folks for being a few minutes late for a hearing or misreading an NTA in a language they can’t understand. Anybody had a problem with their U.S. Mail lately? We have, in our “upper middle class neighborhood” in Alexandria, VA. Yet, EOIR and some Article IIIs continue to promote the “legal fiction” of a “presumption of proper (and timely) delivery” of notices sent by regular U.S. Mail.

Until, Garland has the backbone to restore ethics and the rule of law at EOIR and the rest of the DOJ, particularly by reassigning or otherwise removing those who “went along to get along” and replacing them with ethical, qualified, experts from the NDPA who will speak truth to power and hold immigration enforcement bureaucrats accountable, our justice system will continue its tailspin!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

O5-15-21

PROFESSOR GEOFFREY HOFFMAN: This Is Progressive Liberalism? — Scofflaw Biden Administration Continues To Use Illegal Trump Subterfuge To Close Borders To Asylum Seekers (Disproportionately People Of Color) As AG Garland Looks The Other Way!

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

https://www.texasstandard.org/stories/advocates-say-continued-use-of-title-42-to-exclude-most-asylum-seekers-from-the-us-discriminates-against-them/

From the Texas Standard:

The Biden administration’s approach to the border and immigration has been heavily criticized. With Trump-era policies still in place, some advocates object to the way the rules are being enforced right now, specifically a provision known as Title 42.

Geoffrey Hoffman is a clinical professor and director of the immigration clinic at the University of Houston Law Center. Hoffman told Texas Standard that Title 42 authorizes the surgeon general to suspend immigration into the United States on public health grounds. It has been on the books since the 1940s, and though Title 42 has been evoked several times, its use increased significantly during the Trump administration.

“Back in March of 2020, the Trump administration used Title 42 to curtail, basically, entry of almost everyone from the Mexican border coming in to try to seek asylum,” Hoffman said. “And so that was a very, very big impact on those people.”

Hoffman says 600,000 people have been expelled from the country under Title 42.

Immigration advocates say Title 42 is being used as an “end run” around laws allowing asylum-seekers to enter the United States and pursue their claims.

“The issue is really that it’s being used at the land border in Mexico and Canada, and not through other entries. So it’s been seen as being discriminatory, and a racial-justice issue,” Hoffman said.

The Biden administration has continued to use Title 42, carving out an exception for unaccompanied minors who are being allowed into the country to pursue asylum claims. Some immigration advocates say applying Title 42 differently to different populations should be ended.

“You have Title 42 being used, according to immigration advocates, as a pretext,” Hoffman said. “It’s a pretext to prevent people who are otherwise legitimately seeking asylum, preventing them from seeking that relief.”

Hoffman says the United States has an obligation under the nation’s own laws, and under international law, to provide a means by which asylum-seekers can make their claims. Forcing migrants out of the country without a hearing, under Title 42, violates those laws, he says.

If you found the reporting above valuable, please consider making a donation to support it here. Your gift helps pay for everything you find on texasstandard.org and KUT.org. Thanks for donating today.

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Remember how Jeff “Gonzo Apocalypto” Sessions was never shy about intervening in matters outside his agency jurisdiction, like child separation and DACA, when it fit his White Nationalist political agenda?

But, Judge Garland has not only failed to restore an operating legal asylum system @ EOIR, but also has stood by and watched while DHS daily commits gross violations of international, constitutional, and statutory law — violations that threaten life and safety — under a pretext carried over from the Trumpists. 

Significantly, a U.S. District Judge in D.C. recently ruled that:

It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” she continued. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.

This rationale appears equally applicable to CDC’s legal authority to suspend international conventions, asylum statutes, immigration laws, and  constitutional due process on a cosmic scale as pretext for ending our legal asylum system without passing legislation!

https://www.cnn.com/2021/05/05/politics/cdc-moratorium-evictions/index.html

Sure, there are problems at the border. But, the solution is to:

  • restore legal screening at the ports of entry;
  • reinstate a fair and robust legal asylum process using more trained Asylum Officers and better Immigration Judges — progressive experts in asylum law (NOT like the “gang of 17” same old, same old “bureaucratic retreads” the tone-deaf Judge Garland just put on the bench);
  • repeal of the Sessions/Barr anti-asylum precedents and replacing the BIA with judges who are asylum experts;
  • creating more opportunities for legal immigration for both refugees and needed workers;
  • enlisting the support of the UNHCR, NGOs, religious organizations, universities, and local governments to aid in the processing, representation, and resettlement of asylum seekers; and
  • slashing artificial and unnecessary Immigration Court backlogs to allow qualified expert Immigration Judges to adjudicate on a “real time” basis represented asylum cases that can’t quickly be granted at the Asylum Office and to establish some positive precedents in asylum law to govern and guide practitioners, Immigration Judges, and Asylum Officers.

It’s not rocket science. But, it very clearly is beyond the capability of Mayorkas, Garland, and the other folks Biden has put in charge of the Administration’s immigration policies. There are folks out there who can do the job — Professor Hoffman is just one of many.

The responsible positions necessary to reform, restore, and revitalize our nation’s refugee, asylum, and immigration laws are mostly at the sub-cabinet level, not requiring Senate confirmation. EOIR is a prime example of a great opportunity for progressive change being inexplicably squandered by Garland and his clueless lieutenants. What is important, and has been conspicuously absent from Biden immigration policies to date, is some inspired leadership and enlightened personnel choices from Mayorkas, Garland, and Becerra.

For example, Jeff “Gonzo Apocalypto” Sessions had no hesitation about spreading false narratives about asylum seekers, demeaning their humanity, disrespecting their hard-working attorneys, and encouraging “his” judges to deny more cases (particularly those involving women of color), and to elevate productivity, cutting corners, and obedience to his policies over quality, fairness, due process, and protecting the legal rights of asylum seekers and other immigrants from DHS overreach.

But, what inspiring statement has Judge Garland made about the necessity of making adherence to fundamental fairness, due process, best practices, quasi-judicial independence, and humane treatment of all respondents the touchstone of EOIR? What visible appointments of widely respected practical scholars and human rights experts has he made in EOIR management, the Immigration Judiciary, OIL, or elsewhere in the DOJ. NONE!  Sometimes silence speaks more loudly than words!

With the pandemic and Trump’s xenophobic illegal attack on our legal immigration system, in the face of a sharply declining birth rate, we have plenty room for more immigrants, be they refugees, family members, or essential workers. As Professor Hoffman and others of us had predicted, the racist attack on our immigration system by Trump, unfortunately largely continued by the Biden Administration, has turned our immigration system over to smugglers, cartels, gangs, and pure chance.

A rational, orderly, humane, and most of all legal and constitutional immigration system would benefit all of us. It’s a shame that those currently in Government can’t or won’t make it happen.

Due Process Forever!

PWS

05-07-21

⚖️🗽WATCH, LISTEN TO PROFESSOR GEOFFREY HOFFMAN OF U. OF HOUSTON LAW DELIVER THE 2021 SKELTON LECTURE: “What Should Immigration Law Become?”

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

https://youtu.be/GvwuahGzZQ8

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

A few “takeaways” from one of America’s leading “practical scholars:”

  • Think about a new start with a “clean slate;”
  • Deportation is “state violence;”
  • Immigration Courts are constructed to provide Gov. with an unfair advantage;
  • No rules, no due process, no justice;
  • Kudos to the NDPA & the Round Table;
  • Trump Administration spent inordinate effort improperly skewing the law to insure everything is denied and remove equible discretion from IJs;
  • Good provisions that provided discretion in the past to alleviate hardship and injustice have been eliminated by Congress: suspension of deportation, JRAD, 212(c), 245(i), registry (not repealed but now virtually useless b/c of 1972 cutoff date).

👍🏼🗽Thanks, Geoffrey, and Due Process Forever!

PWS

03-04-21

PROPHET 🔮 IN HIS OWN TIME: IN 2015, PROFESSOR GEOFFREY HOFFMAN CALLED FOR BETTER IMMIGRATION JUDGES 🧑🏽‍⚖️👩‍⚖️👨🏻‍⚖️⚖️ — The Situation Is 10X Worse Now! — Judge Garland Must Act To End This National Disgrace That Otherwise Will Quickly Become A Blot On The Biden Record! — “[L]et’s draw from the ranks of those with proven compassion, like the YMCA directors, legal aid attorneys, and people who will never belittle a child, never lose themselves in the power and prestige, and be resilient and persevere in one of the hardest jobs imaginable.”

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

From LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/posts/geoffrey-hoffman-eoir-needs-better-immigration-judges

Geoffrey Hoffman: EOIR Needs Better Immigration Judges

Prof. Geoffrey Hoffman, Nov. 24, 2015 – “It is important, I think, to note the import but also the paradox behind the BIA’s latest precedent decision, Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) that admonishes IJ’s not to bully minors. In the decision, the Board discusses conduct by an Immigration Judge that can be construed as “bullying or hostile” behavior and says it is “never appropriate,” particularly in cases involving “minor respondents,” concluding such behavior may result in remand to a different Immigration Judge. I am glad that the Board is finally taking to task this kind of egregious IJ behavior. On the one hand, we should applaud the Board for pointing out this behavior and finally holding it up to the light of day in an important new precedent decision. On the other hand, it is a sad commentary on the behavior of some judges that the appellate body of the EOIR has to even say this publicly. Of course judges should not behave this way, and the fact that recusal is mandated by the BIA in such situations is something to congratulate the Board for now getting behind. But, one wonders whether this response is at all sufficient. Whether, as an IJ, I can now say, “Well, the worst that will happen is that I will have the case taken away from me on remand, and therefore I do not have to deal with this mess anymore.” It doesn’t seem like much of a deterrent.

In a case which I handled on appeal, the IJ denied the respondent’s attorney the opportunity to call a psychologist to testify about the respondent’s mental condition and disease (bipolar disorder), a fact which went directly to the particular social group and seemed particularly relevant to me. When the attorney respectfully requested permission to put on the expert witness, and specially whether the witness could testify about any medications the respondent had taken or was taking the IJ in response asked the attorney whether she was on any medications. Was she on any medications? I read and re-read that line again and again as I prepared the appeal thinking perhaps I had missed the joke. But this wasn’t a joke. It was simply intemperate behavior by an IJ. Thankfully, the BIA correctly and compassionately remanded the case but based on the bipolar condition, recognizing that it could form a valid PSG. No mention was made of the issue of judicial impropriety I had raised in the brief. In other appeals I have done before the Board, I have noticed that when raising issues with the Board about IJ’s missing evidence or even misconstruing the factual background, the Board does not seem to deal with these issues head-on but instead bases their decisions on some other ground, preferring to adjudicate the appeal on a legal ground rather than on the basis of judicial misconduct or judicial mistake. And there is nothing surprising here, with the Board insulating IJ’s from admonishment and not highlighting their misunderstandings of the record, but there is I think a cost which has been underreported or perhaps not even appreciated. The cost is that IJs become used to behaving in a way that can be described as intemperate at best and demeaning or demoralizing and abusive, at worst.

This said, I do have a lot of sympathy for many IJs, having worked very hard myself for a federal judge for two years after law school, and seeing and appreciating the incredible stress and responsibilities of being a judge. The IJs, it should be mentioned, have it worse: they have to juggle a case load of hundreds and hundreds of cases, while at the same time maintaining compassion and composure at all times, and at the same time providing a clear, cogent and correct legal analysis in all cases and contexts. However, and this needs to be said, I think some IJs should not be IJs and should not have been selected to be IJs. If we want to make the immigration court system work we need to do a better job in vetting these judges, choosing based on temperament and suitability to deal with the rigors of handling all these cases with compassion and professionalism.

This is the time now (at this very moment) to make this statement as loudly and boldly as possible, since EOIR right now is advertising for 50+ new judgeships across the country. Since we have approximately 250+ judges, this represents an approximate 20 percent increase. I implore EOIR to make these decisions with due regard to how the judges might act in future, not just whether they have experience deporting people, working for the government in other capacities, or experiences such as being in the military. While those are factors, let’s draw from the ranks of those with proven compassion, like the YMCA directors, legal aid attorneys, and people who will never belittle a child, never lose themselves in the power and prestige, and be resilient and persevere in one of the hardest jobs imaginable.”

Geoffrey A. Hoffman

Director-University of Houston Law Center Immigration Clinic

Clinical Associate Professor

4604 Calhoun Road

TU-II, Room 56

Houston, TX 77204-6060

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Unfortunately, the Obama Administration ignored Geoffrey’s plea. Instead of creating a well-qualified, independent, progressive judiciary that could achieve the “EOIR Vision” of: “Through teamwork and innovation becoming the world’s best tribunals, guaranteeing fairness and due process for all,” the Obama Administration handed out immigration judgeships like they were service awards for DHS prosecutors, DOJ attorneys, and other government lawyers.

The Obama selections appeared designed primarily to avoid appointing anyone who might have the background, backbone, and courage to “rock the boat” and stand up for immigrants’ rights even when it meant rejecting ill-advised and legally questionable Administration enforcement policies and procedures. In other words, truly independent judging and thinking was discouraged in favor of a “go along to get along” atmosphere mischaracterized as “collegiality.” 

Sure, collegiality has its benefits. But, in the end, independent judging is about justice for the individuals coming before the courts, not about institutional survival, job preservation, making friends, achieving bureaucratic performance goals, or pleasing political “handlers” who don’t want to read about their “subordinates” in the “funny papers.” When I was ousted from the BIA as part of the so-called “Ashcroft purge,” I noticed that those those judges who were “collegial” but outspoken about immigrants’ legal rights got punished right along with those who were perceived as “less collegial” in standing up for the same rights.

Moreover, the Obama folks designed an unwieldy and astoundingly inefficient “Rube Goldberg selection system” that took more than two years to fill an average IJ vacancy — much longer than the Senate confirmation process! This was at a time when backlogs were building and the NAIJ and the “line IJs” were begging “EOIR management” for help. “Management” could have achieved comparable results simply by throwing darts at a board containing the names of government attorneys. And, it would have cut the red tape. 

Inept as the Obama Administration might have been, the Trump kakistocracy of course proved to be our worst nightmare. They “weaponized” the EOIR immigration judiciary into a tool of White Nationalist nativist enforcement, racial injustice, and misogyny. Here are some of the things Sessions and Barr did at the behest of Stephen Miller:

  • “Packed” the BIA with judges known as “asylum deniers” — some with denial rates in excess of 90%;
  • Appointed IJs from the Atlanta Immigration Court, which had generated Matter of Y-S-L-C-, to the BIA in an overt attempt to replicate the “Asylum Free Zone” as Atlanta was known throughout the private bar;  
  • “Rewarded” with BIA appointments several judges who had complaints lodged against them for their rude and unprofessional in-court behavior, open hostility to asylum seekers (particularly women), and unprofessional treatment of private attorneys; 
  • Issued bogus EOIR and BIA precedents, some on their “own motion,” that were almost 100% against respondents and in favor of DHS Enforcement while undoing long-standing rules that had promoted fairness to asylum seekers and sound docket management;
  • Appointed almost all government/prosecutorial background Immigration Judges, many without immigration qualifications, others associated with anti-immigrant or anti-gay groups;
  • “Decertified” the National Association of Immigration Judges (“NAIJ”) as punishment for speaking out against gross mismanagement at EOIR and DOJ;
  • Imposed due-process-denying unprofessional “production quotas” on IJs intended to increase deportation rates;
  • Deprived IJs of effective management control over their dockets, while engaging in endless “Aimless Docket Reshuffling;”
  • Unethically exhorted IJs to treat the DHS as their “partners” in enforcing immigration laws;
  • Gave the Director — essentially a political appointee disguised as a career executive — authority to interfere with BIA decision making in certain cases;
  • Basically reduced Immigration Judges to the status of “deportation clerks” while falsely claiming that they were “management officials” to “bust” the union;
  • “Dumbed down” immigration judge training;
  • Artificially “jacked up” the Immigration Court backlog to an astounding 1.3 million cases — even with twice the number of IJs on the bench.

As one of my esteemed Round Table colleagues said, “since [Geoffrey’s article] was written, record numbers of good IJs resigned over the past 4 years, many good candidates wouldn’t apply (or if they did, likely weren’t chosen) over the past 4 years, and then just the general drop in quality that comes with that degree of expansion [in the absence of competent planning].”        

The lack of compassion, glaring disregard for the protective purposes of refugee law, and absence of human understanding as to what it means to be a refugee seeking salvation simply screams out from the last four years of perverse AG and BIA precedents as well as from some of the elementary mistakes made by EOIR judges at all levels in the numerous cases reversed by Courts of Appeals over the past four years.  

And, this is just the “tip of the iceberg.” Many seeking protection are denied any hearings at all, railroaded out without understanding what’s happening, or simply give up without appealing wrong decisions and denials of due process — worn down by the abusive and unnecessary detention that EOIR helps promote and the intentionally “user unfriendly” procedures developed to discourage individuals from asserting their legal and human rights. 

While the broken and reeling Department of Justice presents many challenges, I predict that Judge Garland’s tenure will be remembered largely by how he deals, or doesn’t deal, with the total disaster in the U.S. Immigration Courts. The Trump regime’s attack on democracy and people of color began with immigration, and the effort to dehumanize and degrade migrants continued until the final day. 

Will Judge Garland leave behind a reformed, progressive, due-process-oriented system that is a model judiciary? One that finally fulfills the vision of — “Through Teamwork and innovation action becoming the world’s best tribunals, guaranteeing fairness and due process for all?” A court that can easily transition out of the DOJ intro an independent Article I Judiciary? Or will he leave behind another disgraceful mess and the dead bodies, broken dreams, and visible betrayals of American values to prove it?

Only time will tell! But, the NDPA will be watching. And, there isn’t much patience out here for more of the “EOIR Clown Show!”🤡🦹🏿‍♂️

🇺🇸🗽⚖️Due Process Forever! Better judges 🧑🏽‍⚖️👩‍⚖️👨🏻‍⚖️ for a better America. And that starts (but doesn’t end) with the U.S. Immigration Courts!

PWS

02-14-21

INSPIRING NEWS FROM THE NDPA: LATEST FIFTH CIRCUIT DECISION SHOWS WHY TODAY’S BIA NOT ENTITLED TO “DEFERENCE” AS AN “EXPERT TRIBUNAL” — Read Professor Geoffrey Hoffman’s Outstanding Analysis of Latest Rap on BIA’s Skewed Jurisprudence — Inestroza-Antonelli v. Barr — @ ImmigrationProf Blog

nhttps://lawprofessors.typepad.com/immigration/2020/04/geoffrey-hoffman-a-stunning-fifth-circuit-asylum-decision-an-analysis-of-inestroza-antonelli-v-barr.html

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

Geoffrey writeS in ImmigrationProf Blog.

pastedGraphic.png

A Stunning Fifth Circuit Asylum Decision: An Analysis of Inestroza-Antonelli v. Barr  by Geoffrey Hoffman, Clinical Professor, University of Houston Law Center

I was moved this morning to write about a recent decision from the Fifth Circuit. This is an insightful and sensitive decision from the 2-person panel’s majority, Judges Dennis and King, with Judge Jones dissenting. The April 9th decision is Inestroza-Antonelli v. Barr.

In the very first paragraph, the essence of the decision is announced: “Without addressing the coup, the BIA found that any change in gender based violence was incremental or incidental and not material. Because this conclusion is not supported by the record, we grant the petition and remand.” Id. at 1.

Procedurally, the case involved an in absentia order of removal from 2005. In 2017, the petitioner moved to reopen proceedings outside the 90-day deadline for such motions based on a change in country conditions in Honduras. The petitioner argued that in Honduras since the time of her original removal order there had been “a 263.4 percent increase in violence against women since 2005.” She submitted a trove of documents to support her motion. The Immigration Judge, and Board on appeal denied her motion to reopen.

As recounted in the panel’s decision, there had been a military coup in Honduras in 2009. Specifically, there were several principal changes in the country as a result: “(1) the Gender Unit of the Honduran National Police, established between 2004 and 2005, has been restricted in its operations, and access to the Unit is now limited or nonexistent; (2) the power of the Municipal Offices for Women to address domestic violence has been severely diluted, and officials have been removed from their positions for responding to women’s needs, especially those related to domestic violence; (3) institutional actors have targeted women for violence, including sexual violence, and threatened the legal status of over 5,000 nongovernmental women’s, feminist, and human rights organizations that have opposed the post-coup government’s policies; (4) the rate of homicides of women more than doubled in the year after the coup and has continued to steadily increase, ultimately becoming the second highest cause of death for women of reproductive age; and (5) in 2014, the status of the National Institute for Women was downgraded and other resources for female victims of violence were eliminated….”

The crux of the Immigration Judge’s decision in denying her motion to reopen was that the violence suffered by women in Honduras is an “ongoing problem” and the increase allegedly did not represent a “change in country conditions.” The Board, in its decision, did not even mention the coup, finding instead that the IJ had not  clearly erred” because the evidence reflected only an “incremental or incidental,” rather than a “material” change in country conditions.

I would like to point out several noteworthy and instructive aspects of this excellent decision.

First, in analyzing her claim, the Fifth Circuit’s majority noted, as is usual, that the government had introduced “no conflicting evidence.” Indeed, they did not introduce any evidence of country conditions in Honduras at all. Instead, on appeal they “cherry-pick[ed]” excerpts from the evidence introduced by the petitioner. Most typically, the relied on a 2014 Department of State report describing the availability of “domestic violence shelters and municipal women’s offices.”

This first point is important because it accurately describes what is typical of these asylum proceedings. The government often relies on little beyond the State report, and introduces no other evidence of its own. The result sometimes leads to tortured arguments on appeal, nitpicking before the Board, or unfair conclusions before the immigration judge.

It is frustrating sometimes when we litigate these cases and we see parties attempt to shoehorn their conclusions into preconceived molds. This selective reasoning should be called out more often. Many times when confronted with a record that contains a treasure trove of material that is largely favorable to the immigrant, the government is at a loss about how to respond on appeal. Instead of agreeing to a remand, they are faced with defending a sparse record with support for their position. As such, they have to (assuming they do not agree to a remand) cull through the record to find anything to shore up the precarious reasoning in the administrative decisions below.

Second, the majority rejects reliance on a prior case where a petitioner had not presented sufficient evidence of changed country conditions. As astutely pointed out by the majority, it makes no sense to hold that the current petitioner is unable to meet her evidentiary burden merely because a prior petitioner had failed to do so. In the words of the majority, “to hold that Inestroza-Antonelli is precluded from proving that conditions changed as a factual matter during this period simply because a previous petitioner failed to do so would violate the ‘basic premise of preclusion’—i.e., ‘that parties to a prior action are bound and nonparties are not bound.’ Id. at 7 (citing 18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4449 (3d ed. 2019)). It is refreshing to see a panel rely on the famous federal practice and procedure treatise.

Third, the decision does a wonderful job of elucidating the “substantial evidence” standard, which is used so often against the immigrant-petitioner. Here, the majority explains that this standard does not mean that the Court of Appeals reviews the BIA decision to determine whether “there theoretically could have been some unevidenced occurrence that would make its findings correct.” Id. at 5 (emphasis added). Instead, the “substantial evidence” standard just means what it says: whether a party has produced substantial evidence in support of their position. Here, the government – as noted – provided no evidence against the petitioner’s position. In fact, the record “compels” the conclusion that conditions have “significantly changed,” according to the majority.

Fourth, the decision takes to task the BIA’s lack of analysis in its decision, specifically the failure on the part of the agency even to mention the “coup” in Honduras. Instead, there was nothing but a conclusory statement that the Board had “considered [the petitioner’s] arguments.” We have seen, for example, other courts of appeals such as the Seventh Circuit, take to task the BIA in recent months. See Baez-Sanchez v. Barr (7th Cir. 2020) (Easterbrook, J.) .  It is a very good sign that circuit courts are making searching inquiries, demanding compliance from the Board and EOIR, and not engaging in mere cursory review.

There was a frustration shown in that, as they noted, the Board evidenced a “complete failure” to address the “uncontroverted evidence” of a clear significant “turning point” in Honduras’ history. The majority characterized this failure as an abuse of discretion by the BIA. On a separate point concerning the Board’s rejection of an argument about her abusive husband’s return to Honduras in 2009, as a changed in country conditions, the majority stopped short of calling that argument’s rejection an “abuse of discretion.” In a footnote, the majority noted several sister circuits that agreed that such a change should be characterized as a change in “personal circumstances.”

The most notable thing about the panel’s 2-1 decision besides its well thought-out reasoning is the lack of any discussion involving Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018), anywhere in either the majority’s or dissent’s decisions. Arguably, A-B- is related and has been used (routinely) by the government to argue against relief for women who are similarly situated. Because this case turned on a denial of a motion to reopen in 2017, and there was no Attorney General’s decision until 2018, there was no occasion for the IJ and, later, the BIA rely on the AG’s A-B- decision. To the extent that AG Sessions in A-B- did not rule out all gender-based violence claims, the more important take away here is this: Matter of A-B- can be overcome and is no prohibition on relief, despite what a number of judges and BIA members may believe, so long as the petitioner can produce substantial evidence in support of his or her claims, as the petitioner did so well here. (Note, since this decision relates to a motion to reopen, the case will now be remanded to the BIA and IJ and the petitioner’s fight will continue on remand.)

Judge Edith Jones in her dissent, while never relying outright on A-B-, still takes affront at the perceived failure to “defer” to the BIA. In a telling passage, she states: “The majority has failed to defer to the BIA, which, hearing no doubt hundreds (or thousands) of cases from Honduras, must be far more familiar with country conditions than judges working from our isolated perch . . . . .” This is a scary position. While it is true the BIA has heard thousands of cases from Honduras, this cannot and should not form the basis for any rationale to blindly “defer” to the Board.

This type of deference and the attempted “rubber-stamping” that it engenders was exactly what Justice Kennedy warned about in his short but biting concurrence in Pereira v. Sessions. To quote Justice Kennedy, the “type of reflexive deference exhibited in some of these cases is troubling…it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.” Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018), Kennedy, J., concurring (emphasis added). Justice Kennedy was right. The dissent’s transparent and clearly forthright encapsulation of the arguments in favor of “deference” highlights the dangers inherent in such a position and shows just why Chevron must (and will) be reconsidered.

Geoffrey Hoffman, Clinical Professor, University of Houston Law Center, Immigration Clinic Director

(Individual capacity; Institution for identification only)

KJ

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

Judge Jones’s dissent ignores the clear evidence that the BIA is no longer anything approaching an “expert tribunal,” and that it’s jurisprudence has swung sharply in an anti-immigrant, and specifically anti-asylum, direction under Sessions, Whitaker, and Barr.

How long can the Article IIIs keep “papering over” not only the all too often deficient work-product produced by today’s BIA, but, more significantly, the glaring unconstitutionality of a system constructed and run by prosecutors and politicos that purports to function like a “court.” I doubt that Judge Jones would be willing to trust her life to a “court” that was composed and run like EOIR. So, why aren’t other “persons” entitled to the same Constitutional treatment and human dignity that she would expect if their positions were reversed?

In the meantime, I wholeheartedly endorse Geoffrey’s observation that even in the “Age of A-B-,” and in the normally “asylum-unfriendly” Fifth Circuit, great scholarship, persistence, and good lawyering can save lives! We just need more “good lawyers” out there in th NDPA to keep pressing the fight until all of the Article III’s stop “going along to get along” with the charade currently unfolding at EOIR and we also get the “regime change” necessary to establish an Article I Immigration Court that functions like a “real court” rather than a surreal vision of a court. 

Due Process Forever!

PWS

04-13-20