☹️GARLAND’S BIA TRIPS ON PRECEDENTS, AGAIN!  — 9th Orders Another “Do-Over” For Wayward Tribunal’s Bogus “Presumption of a Particularly Serious Crime!”👎🏽

Dan Kowalski reports for LexisNexis Immigration Community:

CA9 on Particularly Serious Crime: Mendoza-Garcia v. Garland

Mendoza-Garcia v. Garland

“The BIA reviews de novo the IJ’s determination of “questions of law, discretion, and judgment,” 8 C.F.R. § 1003.1(d)(3)(ii), including whether an alien’s prior offense is a “particularly serious crime.” It is unclear whether the BIA undertook that de novo review here, because it applied a “presumption” that Petitioner’s conviction was a particularly serious crime and required him to “rebut” this presumption. But for those offenses that are not defined by the statute itself as “per se a particularly serious crime,” the BIA’s precedent establishes “a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious.” Bare, 975 F.3d at 961. Moreover, we have rejected the view that there is any subset of such cases that is exempt from this multi-factor analysis “based solely on the elements of the offense.” Blandino-Medina, 712 F.3d at 1348. The BIA’s application of a rebuttable presumption is difficult to square with these precedents, and the Government concedes in its brief that the BIA’s application of such a presumption “appears erroneous.” The BIA committed an error of law, and abused its discretion, in failing to apply the correct legal standards in assessing whether Petitioner’s offense was a “particularly serious crime.” We therefore remand to the BIA to consider Petitioner’s application for withholding of removal under the correct standards.”

[Hats off to Nancy Alexander, Kari E. Hong, Boston College Law School, Newton, Massachusetts; Elisa Steglich, Attorney; Simon Lu and Jill Applegate, Supervised Law Student; University of Texas School of Law, Austin, Texas; for Amicus Curiae American Immigration Lawyers Association!]

Nancy Alexander
Nancy Alexander ESQUIRE

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Congrats to Nancy, Kari, and the rest of their team!

Even OIL couldn’t defend the BIA’s shoddy work here!

Know what builds unnecessary backlog fast?

  • “Over-denial”
  • Lack of positive guidance
  • Sloppy work
  • Assembly line justice
  • Remands
  • Lack of practical expertise and “big picture” perspective.

So, why hasn’t Garland replaced his “Gang That Can’t Shoot Straight” at the BIA with real “practical expert judges” — NDPA all-stars 🌟 like Kari Hong and Nancy Alexander! Judges like Kari and Nancy would “get ‘em right” in the first place and insure that Immigration Judges do the same!

Why is his system struggling and failing when the top-flight judicial talent to fix it is out there in the “real world?” 

With human lives and the future of our democracy at stake, why is inferior work product and poor judging acceptable in Garland’s Immigration Court system?

How is “make it up as you go along justice” Due Process in Garland’s Courts?

Why isn’t Garland being held accountable for the “parody of justice” that plays out every day in his dysfunctional “courts?” 

🇺🇸Due Process Forever!

PWS

06-12-22

 

⚖️BC PROFESSOR KARI HONG’S BIG WIN IN 10TH CIRCUIT HIGHLIGHTS YET ANOTHER FAILURE OF BASIC ASYLUM ANALYSIS BY EOIR JUDGES! — This Time They Failed To Follow The Rules On “Reasonably Available Internal Relocation!” — ADDO v. BARR — “[B]ecause the purpose of the relocation rule is not to require an applicant to stay one step ahead of persecution in the proposed area, th[e] [new] location must present circumstances that are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.”

 

Professor Kari Hong
Professor Kari Hong
Boston College Law
Photo: BC Law Website

Addo Opinion

Addo v. Barr, 10th Cir., 12-14-20, published

PANEL: HARTZ, PHILLIPS, and CARSON, Circuit Judges.

OPINION BY: Judge HARTZ 

KEY QUOTE:

On this record we think it was unreasonable for the BIA and the IJ to decide that the government successfully rebutted the presumption that Petitioner has a well-founded fear of future persecution in Ghana. Their finding that Petitioner could safely relocate within Ghana is not supported by substantial evidence. See Arboleda v. U.S. Atty. Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (concluding that relocation “would not successfully shield [an asylum applicant from] persecution” because, although the applicant “relocated from his farm . . . to the capital city,” “the [persecutors] continued to threaten [the applicant] and his family . . . , [including through] frequent notes and telephone calls detailing the family’s activities and threatening them with death,” and by “burning down [the applicant’s] farm house”).

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Yet another in the steady stream of documented failures of basic asylum analysis — the X’s and O’s — by a supposedly “expert” tribunal that is anything but!  

This decision would be an outstanding “teaching tool” for instructing Immigration Judges on the proper analysis of a “reasonably available internal alternative.” The word “reasonable” is often “read out” of the analysis by EOIR judges in their rush to find “any reason to deny” claims to please their nativist political handlers. 

In my more than two decades of experience at both the trial and appellate levels of the Immigration Judiciary, I observed that it is very difficult for DHS to properly rebut the presumption of future persecution by showing “that there is a specific area of the country where the risk of persecution to the respondent falls below the well-founded fear level,” as accurately described by the 10th Circuit. Indeed, it appears that many EOIR Judges lack the skills and training necessary to grant asylum with cogent analysis that would cut off many of the semi-frivolous appeals that ICE now takes. This is truly a “judiciary in shambles” under current  grossly defective leadership.

I daresay that if all Immigration Judges held the DHS to their legal burden under this standard, the presumption would seldom be rebutted, in either asylum or withholding cases. But, the lack of real asylum expertise at today’s “dumbed down” EOIR and the clear “any reason to deny and deport” message sent by corrupt regime politicos to “their captive judiciary” undoubtedly results in numerous miscarriages of justice and wrongful removals. 

Note that the respondent in this case was actually removed pending appeal! Had the case been handled properly in June 2017, the respondent would have been granted asylum, be a green card holder, and on his way to achieving citizenship. Instead, Professor Hong has to hope that she can get him back to the U.S. while he’s still alive!

The costs of EOIR’s deficient “judging” and unethical “weaponization” go far beyond what meets the eye. Someday, historians and sociologists will uncover and document the true human and moral costs of this disgraceful period in American history when we let grossly unqualified and immoral leaders and their accomplices lead us down the path to inhumanity and the abuse of the rule of law. 

Unnecessary escapades like this, where cases that should be granted at “first instance review” instead linger in the system, moving from level to level and back again, for years, without proper resolution, make it easy to understand why EOIR builds “artificial backlog” while failing to provide basic justice.  It also shows why the solution is “better judges” at EOIR and more prosecutorial discipline at ICE, rather than just shoving yet more additional judges into a broken, dysfunctional, and intentionally inefficient system that has been run into the ground by “malicious incompetents” over the past four years. NDPA expertise at EOIR and DHS are the answers!

Perhaps the “new EOIR” should hire Professor Hong to provide some real expert training on asylum law. Or, better yet, appoint her to an Appellate Judgeship at the BIA where she can lead a “renaissance of competence” in due process and fair asylum adjudication at EOIR and “teach by example!”

Or, even better, given her outstanding credentials, practical litigation experience, scholarship, courage, and proven leadership, appoint her to an Article III Judgeship where she can help improve the performance of the entire Federal Judiciary on what is one of the key issues in the fight to achieve social justice for all in America.

We need some new faces and better “practical scholarship” at ALL levels of the Federal Judiciary, from the “retail level” of the Immigration Courts to the Supremes. Better Judges for a Better America for all! Biden-Harris Administration take note!

Thanks, Professor Hong to you and your dedicated  “crew” @ BC Law for all you do for the NDPA and for American Justice! You are making a difference!

In addition to Professor Hong’s stellar efforts, I am also reminded by my good friend, and another NDPA Superstar 🌟 Michelle Mendez @ CLINIC, of the key “behind the scenes” role played by the CLINIC BIA Pro Bono Project . Brad Jenkins and Rachel Naggar helped Professor Hong prepare for oral argument. (In the “small world” category, Brad did a “textbook presentation” of an asylum case before me in Arlington while he was serving as an Accredited Representative and a fellow at CAIR. I only found out later that he was a “ringer” on his way to Harvard Law and a distinguished career in social justice!) Additionally, Tania Linares Garcia (from NIJC) was part of the “team of experts” advising Professor Hong.

This is just another example of the great teamwork and mutural support that is the hallmark of the NDPA and the pro bono immigration/human rights community.  As those who have had me for a teacher at Georgetown Law or have heard me speak know, I always “preach five things:” fairness, scholarship, timeliness, respect, and teamwork. Those were once “what EOIR was suppposed to be about” before the precipitous decline and total loss of values.

But, if the Biden-Harris Team takes bold and decisive action to eliminate the current kakistrocracy and replace it with “NDPA pros,” the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” can become a reality!  Things don’t have to be the way they are now at EOIR!

Due Process Forever!⚖️🗽😄

PWS

12-17-20

ROUND TABLE 🛡⚔️ SPEAKS OUT ON ACQUIESCENCE IN 9TH CIR, WITH HELP FROM PROFESSOR KARI HONG🦸‍♀️🌟

Professor Kari Hong
Professor Kari Hong
Boston College Law
Photo: BC Law Website

Here’s the brief:

Ramos Mendoza Amicus Roundtable 17 71841

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Thanks, Kari!

Knightess
Knightess of the Round Table

Due Process Forever!

PWS

11-02-20

GONZO’S WORLD: PROFESSOR KARI HONG EXPLAINS SIX WAYS THAT TRUMP, SESSIONS, & CO. ARE THE REAL SCOFFLAWS IN THEIR MISGUIDED CRUDSADE AGAINST SO-CALLED “SANCTUARY CITIES!”

https://thecrimereport.org/2018/01/08/sanctuary-cities-vs-trump-whos-really-breaking-the-law/

Professor Hong writes in The Crime Report:

“As we start a new year, the status of “sanctuary cities” promises to be a continuing flashpoint in the immigration debate. The Trump Administration cites the “rule of law,” and immigrants’ supposed failure to follow it, to justify its crackdown on cities that fail to refer undocumented immigrants who are arrested to federal immigration authorities.

But the president’s attempt to withhold funds from sanctuary jurisdictions doesn’t meet that rule-of-law standard.

Here’s some background. Since 2008, the federal government has sought state and local cooperation in enforcing immigration law under a program originally named Secure Communities, which allows police to check a person’s immigration status in a database maintained by Immigration and Customs Enforcement (ICE), after he or she is stopped for a traffic violation or arrested for a state crime.

If there is a match, ICE asks the local entity to detain the individual until ICE determines whether an immigration hearing is required, and a judge will then decide if deportation is merited.

Those who support this program, including Trump and Attorney General Jeff Sessions, claim states and cities must use Secure Communities to catch murderers and rapists. Trump issued an executive order deputizing state and local officers to make immigration arrests, and threatened to withhold money from any city and state that does not cooperate.

But ironically, according to four federal judges and a growing number of state courts, it’s Trump’s request that fails to follow the law.

The request flouts the rule of law on six counts.

First, the president seeks to punish “sanctuary jurisdictions.” But only Congress—not the president—can give or withhold federal funds.

The federal government’s lawyers understand the flaws in Trump’s order to withhold funding from jurisdictions. In one of the California cases, the Department of Justice argued that the federal judge should not enforce its order because Trump’s request is unenforceable and should just be ignored. (The judge didn’t buy that argument.)

Second, no one knows what the term “sanctuary jurisdictions” means. When John Kelly, currently the president’s chief of staff, headed the Department of Homeland Security and was tasked with penalizing such jurisdictions, he testified that he “do[esn’t] have a clue” on how to define a “sanctuary city.”

Generally, the term is understood to apply to cities and states that cooperate with the federal government on immigration arrests. But there are no means to define what a failure to act means. It could arise from a decision not to cooperate, but it could also be the result of a lack of opportunity.

That’s like penalizing a backup quarterback for not scoring touchdowns every time the starter plays; it’s simply not his job.

Third, the ICE database is filled with errors. In 2010, ICE detained an individual for three days who was in fact born in Puerto Rico, and therefore a U.S. citizen. This year, ICE agents erroneously detained Mohammed Ali’s son questioning his citizenship. They also detained a visiting Holocaust scholar for violating his visitor’s visa by accepting payment for a speech, not knowing that academics are exempt from that rule.

Fourth, the program is expensive. The federal government requires states and cities to pay for the detention of the non-citizen. Los Angeles stopped doing it after paying $26 million in one year. And when mistakes occur, ICE will not indemnify states or cities.

That means if a state or local police officer detains someone ICE has mistakenly determined is deportable, the state and city will be exposed to a civil lawsuit that seeks monetary compensation for that wrongful detention.

Fifth, even when predicated on correct information, a growing number of stateand federal courts are finding ICE’s requests unlawful and unconstitutional because they do not relate to any ongoing or prospective criminal activity.

Living in the country without status is not a crime. ICE’s requests thus run afoul of the Fourth Amendment’s requirement that the government detain only people who are suspected of committing crimes.

Sixth, the program is ineffectual.

In the nearly 10 years Secure Communities has existed, only a minority of the millions identified have a prior conviction for violent crime. Around 12 percent of the millions of non-citizens identified in this program had been convicted of “serious crimes”, which is a category that includes both violent crimes and non-violent crimes of forgery, fraud, and non-violent drug offenses. Another 25 percent had minor crimes or traffic infractions, such as driving their child to school without a license.

And approximately 40 percent of non-citizens who were picked up in this program had no criminal record.

Under Trump, although the number of immigration arrests increased 40 percent from last year, no more than six percent of those arrested had criminal records.

That low number should not be surprising.

If someone truly is a murderer, rapist, or posed a real danger, they would be rotting in a prison cell. They would not be in the streets, afraid that an ICE officer could somehow discover that they overstayed their visa 20 years ago.

This logic plays out in fact. A recent study concluded that residents in sanctuary cities experience lower crime rates than their counterparts. The case of Kathryn Steinle, 32, who was killed while walking in San Francisco’s Fisherman’s Wharf area in 2015, was used by Trump and immigration opponents as an example of the dangers posed to Americans by undocumented immigrants.

But while the perpetrator was a man who had already been deported five times because of criminal convictions, he proved to be the wrong symbol. Last month, a jury concluded that her death was a tragic accident from a gun misfiring and rejected both murder and manslaughter charges.

Editor’s Note: In response to the acquittal, the Justice Department announced it would file federal charges against the man, and issued an arrest warrant.

Worse, requiring local communities to enforce immigration law is harming its citizenry.

Police chiefs and commissioners have been outspoken in their support of sanctuary policies, arguing they are critical tools to encourage crime victims and witnesses in the immigrant community to cooperate with the police.

Their concerns were well-founded. In the first three months of 2017, the Los Angeles Chief of Police reported that among all ethnicities, only Latino individuals had a 25 percent drop in reporting rapes and domestic violence.

Keep in mind that those with criminal records are not always the so-called “bad hombres,” to use the president’s notorious phrase. Minor crimes have been used to deport combat veterans. A drug crime was the reason to deport a 9/11 volunteer who helped clean up the rubble of the World Trade Center.

Misdemeanors, expunged convictions, and even pardoned state crimes are deportable offenses. And immigration law sweeps in old convictions, so that green card holders who are middle-aged become deportable, regardless of years of proven rehabilitation.

It is too bad that “sanctuary” is the term to describe the jurisdictions that opt out of this program, because it wrongly implies that cities and states are providing amnesty. It would be unimaginable for local police—while issuing speeding tickets or investigating murders—to double check if the driver, the suspects or witnesses had properly filed their respective taxes with all the appropriate deductions, and then detain them until an IRS agent could review their past tax returns.

But that is exactly what is happening with immigration, or at least it was, until four federal judges—and counting—stopped Trump for failing to follow the law.

Kari Hong

Kari Hong

The lesson is clear. Actual criminals are best apprehended and punished by state criminal justice systems. Congress should focus on fixing the broken immigration system that had last seen reform over 20 years ago, and local cities should spend their time and money on local matters.

Casting blame on cities doesn’t solve anything. Forcing cities to do the work of the federal government is truly making things worse.

Kari Hong, an Assistant Professor at Boston College Law School, teaches immigration and criminal law. She founded a clinic representing non-citizens with criminal convictions in the Ninth Circuit, and has argued over 100 Ninth Circuit cases and 50 state criminal appeals.”

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The concept that Scofflaw Gonzo is “restoring the rule of law” at Justice is a cruel joke. “Gonzo’s law” has no real room for the rights of Blacks, Hispanics, Gays, Immigrants, Women, Muslims, or others who don’t fit his “Bannon-Miller” White Nationalist restrictionist agenda.

PWS

01-14-18