"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Excerpt:
The immigration court system lacks independence. An agency within the Department of Justice, the Executive Office for Immigration Review (EOIR) houses the immigration court system, which consists of trial-level immigration courts and a single appellate tribunal known as the Board of Immigration Appeals (BIA). Immigration judges, including appellate immigration judges, are viewed by EOIR “management” not as judges, but as Department of Justice attorneys who serve at the pleasure and direction of the Nation’s prosecutor-in-chief, the Attorney General.
As former immigration judges, we offer the Court our experience and urge that corrective action is necessary to ensure that immigration judges are permitted to function as impartial adjudicators, as required under the Immigration and Nationality Act. The INA and its implementing regulations set forth procedures for the “timely, impartial, and consistent” resolution of immigration proceedings. See 8 U.S.C. §§ 1103, 1230; 8 C.F.R. § 1003.1(d)(1) (charging the Board with appellate review authority to “resolve the questions before it in a manner that is timely, impartial, and consistent with the [INA] and regulations”) (emphasis added); 8 C.F.R. § 1003.10(b) (similarly requiring “immigration judges . . . to resolve the questions before them in a timely and impartial manner”) (emphasis added).
Although housed inside an enforcement agency and led by the Nation’s chief prosecutor, immigration judges must act neutrally to protect and adjudicate the important rights at stake in immigration cases and check executive overreach in the enforcement of federal immigration law. Applying a detached and learned interpretation of those laws, judges must correct overzealous bureaucrats and policy makers when they overstep the bounds of reasonable interpretation and the requirements of due process.
As I often say, it’s an honor to be a part of this group with so many of my wonderful colleagues. It’s also an honor to be able to assist so many wonderful “divisions and brigades” of the New Due Process Army, like the SPLC and Immigration Law Lab.
Here’s another thought I often express: What if all of this talent, creativity, teamwork, expertise, and energy were devoted to fixing our broken Immigration Court System rather than constantly fighting to end gross abuses that should not be happening? There is a “systemic cost” to “maliciously incompetent” administration and the White Nationalist agenda promoted by the Trump kakistocracy!
Federal Court Denies Government’s Motion to Dismiss in Immigration Court Case Advocates’ challenge to immigration courts as “deportation machines”
moves forward; constitutionality of immigration court system at issue
PORTLAND, OR – Immigrant rights advocates challenging the weaponization of the U.S. immigration courts applaud Friday’s late-afternoon ruling by the U.S. District Court of Oregon that their lawsuit, Las Americas v Trump, will move forward. The legal services providers, Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC), the Southern Poverty Law Center (SPLC), Innovation Law Lab, and Santa Fe Dreamers Project (SFDP), working with Perkins Coie LLP for pro bono support, allege that the Administration has failed to establish an impartial immigration court as required under the Immigration and Nationality Act (INA) and the Take Care Clause of the U.S. Constitution – weaponizing them into deportation machines against asylum seekers and other noncitizens – and asks the court to end the unlawful use of the courts to effectuate mass deportations instead of fair decisions.
In Friday’s order, the Honorable Karin Immergut denied the government’s motion to dismiss the case. The district court rejected the government’s arguments, holding that all of the organizations’ claims could proceed, including their claim that the Attorney General has grossly mismanaged the immigration court system and weaponized the system against asylum seekers.
“This is a clear victory for everyone who has sought a fair hearing in immigration court, only to face a system plagued by rampant dysfunction and policies designed to subvert justice,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “For asylum seekers and those who represent them, the current process is like playing Russian roulette. Despite the life-or-death stakes in these cases, there is little rhyme or reason to the court’s workings apart from prioritizing deportation at all costs.”
“Friday’s decision is an important milestone in our fight for a truly fair, transparent, and independent immigration court,” said Tess Hellgren, staff attorney with Innovation Law Lab. “Whether an asylum seeker wins or loses should not depend on the political whims of the President or Attorney General. ”
Not only does the Court’s decision confirm that the gross mismanagement of the immigration court system is subject to judicial review, it also recognizes that there may be important constitutional checks and balances on the power of presidential administrations to manipulate the immigration courts to achieve mass deportation.
“This win is incredibly validating. We often operate under the guise that the work we are doing is impossible,” said Linda Corchado, Managing Attorney of the Las Americas Immigrant Advocacy Center. “We feel uplifted as we can take the giant step forward to tackle the system now, with everything we’ve got.”
“ASAP works with families across the United States and at the border who fled persecution and now face countless obstacles to seeking asylum in the U.S. immigration court system,” said Conchita Cruz, Co-Executive Director of ASAP. “This decision gets us one step closer to showing that the injustices of the U.S. immigration court system are not only wrong, but illegal. We stand with asylum seekers and immigrants’ rights advocates in bringing these abuses to light and demanding better from our government.”
The lawsuit, which was filed in December 2019, alleges President Trump, Attorney General Barr, and other members of the executive branch have failed to establish a fair immigration court system in which the plaintiff organizations can provide meaningful legal assistance to their asylum-seeking clients. The complaint outlines pervasive dysfunction and bias within the immigration court system, including:
The Enforcement Metrics Policy, , which requires immigration judges to decide cases quickly, at the expense of a fair process, in exchange for favorable performance reviews.
The “family unit” court docket, which stigmatizes the cases of recently arrived families and rushes their court dates, often giving families inadequate time to find an attorney and prepare for their hearings.
Areas that have become known as “asylum-free zones,” where virtually no asylum claims have been granted for the past several years.
The nationwide backlog of pending immigration cases, which has now surpassed 1 million — meaning that thousands of asylum seekers must wait three or four years for a court date.
In June 2019, Innovation Law Lab and SPLC also released a report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, documenting the failure of the immigration court system to fulfill the constitutional and statutory promise of fair and impartial case-by-case adjudication. The report can be accessed here: The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool.
The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, D.C., is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, see www.splcenter.org and follow us on social media: Southern Poverty Law Center on Facebook and @splcenter on Twitter.
Innovation Law Lab, based in Portland, Oregon with projects around the country and in Mexico, is a nonprofit organization that harnesses technology, lawyers, and activists to advance immigrant justice. For more information, visit www.innovationlawlab.org.
The Asylum Seeker Advocacy Project (ASAP) provides community support and emergency legal aid to asylum seekers, regardless of where they are located. ASAP’s model has three components: online community support, emergency legal aid, and nationwide systemic reform. For more information, see www.asylumadvocacy.org and follow us on social media at @asylumadvocacy on Facebook, Twitter and Instagram.
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So, finally, the clear unconstitutionality of“Star Chambers” run by a biased prosecutor who basically views himself as the personal lawyer for a racist xenophobic President is going to get some scrutiny, along with the beyond grotesque mismanagement of EOIR that has created a “backlog” that in all likelihood now exceeds 2 million cases. But, of course we don’t know, and may never know, the exact extent of the backlog because of 1) the notoriously defective record keeping at EOIR; and 2) the manipulation of and sometimes outright misrepresentation of data by the Trump Administration.
Thanks to SPLC and Innovation Law Lab for undertaking this long-overdue effort. And, special appreciation to my friends and New Due Process Army superstars Melissa and Tess.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Laura Lynch
Senior Policy Counsel
AILA
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
Laura Lynch @ AILA writes:
I wanted to flag this lawsuit that was filed a few hours ago by AILA’s New Jersey Chapter seeking to stop in-person court appearances at the Newark Immigration Court. The attached complaint reveals the following:
“The Newark Immigration Court is no stranger to the devastating effects of COVID-19. The coronavirus spread through the court before it closed in March, and COVID-19 illnesses tragically caused the deaths of both a longtime private immigration attorney and a staffer at the immigration prosecutor’s office, as well as causing the serious illness of both a senior immigration prosecutor and a court translator. More recently, the head of Federal Protective Services at 970 Broad Street in Newark—the building where the Newark Immigration Court is housed—died from COVID-19.”
“Yet, despite the risks posed by the spread of COVID-19, and the actual serious illness and death it has already caused to people involved with the Newark Immigration Court, that court was recently reopened for immigration hearings regarding cases for persons who are not held in detention (the so-called “non-detained docket”). Moreover, even though immigration law and regulations provide for immigration hearings to take place by videoconference—and the Executive Office of Immigration Review, which operates the nation’s immigration courts, has touted its use of such videoconference hearings—the Newark Immigration Court does not provide the option for attorneys or others to appear by videoconference for cases on the non-detained docket.”
The Associated Press wrote a short article about this lawsuit.
It just keeps getting worse and worse. The malicious incompetents at DOJ/EOIR keep endangering lives in an out of their so-called “courts” while those supposedly responsible for “justice in America” let it happen. This is a “Third World Dictatorship-Style Meltdown” happening right here in our country.
How many will have to die or have their lives ruined before this dangerous and dysfunctional embarrassment to humanity is finally put out of its misery (not to mention the misery it brings to others).
This November, vote like your life depends on it! Because it does!
Sam Bernsen 1919 – 2020 Immigration Official, Law Partner, Educator, Mentor
A LEGAL GIANT PASSES: SAM BERNSEN (1919 – 2020) — Public Servant, Law Partner, Teacher, Scholar, Mentor, Humanitarian, Advocate For Due Process — He Helped Change The Face Of America For The Better!
By Paul Wickham Schmidt
Courtside Exclusive
July 30, 2020.I’d seen his name on briefs and old court cases (See, e.g., Vaccaro v. Bernsen, 267 F.2d 265 (5th Cir. 1959)). But, the first time I met Sam Bernsen was in January 1976, when I reported for work at the “Legacy” Immigration & Naturalization (“INS”) Office of General Counsel at the Chester Arthur Building in a rather run-down neighborhood within walking distance of the U.S. Capitol.
That building was perhaps a suitably shabby tribute to the “stepchild” status of INS within the hierarchy of the U.S. Department of Justice (“DOJ”). The carpet was shopworn, elevators slow, and the corridors dim as a result of the Ford Administration’s “Whip Inflation Now” (“WIN”) austerity program that had removed every other fluorescent lightbulb from the fixtures.
The office was a far cry from today’s Department of Homeland Security (“DHS”) massive legal operations: Just Sam, then the General Counsel, his Deputy, Ralph Farb, and two other “General Attorneys,” Stuart Shelby and Janice Podolny. Stu, Janice, and I actually shared an office with three desks (but only two telephones).
And it was always “Sam” not “Samuel.” Sam was his legal name, and he was very proud of it. Perhaps he connected it with “Uncle Sam.”
In any event, one of his “pet peeves” was when unknowing folks addressed him as “Samuel” in memos or on legal documents. I remember him vigorously “blacking out” the offending “uel” with his pen. His other pet peeve was when the server put parmesan cheese on his daily lunchtime bowl of minestrone soup at theGAO cafeteria!
Remarkably, I had gotten the job without personal interview by Sam. I attributed this to recommendations by Sam’s good friend and my first mentor Maury Roberts, then Chairman of the Board of Immigration Appeals (“BIA”), and another friend of Sam’s, Leon Ullman, then Deputy Assistant Attorney General at the DOJ Office of Legal Counsel.
Working for Sam was like having a personal daily seminar in American immigration law from a really great professor. Sam had done it all. And, he took the time to explain everything to those working with him.
During his teens, Sam started at the very bottom of the Civil Service system as an “assistant messenger” with the U.S. Attorney in New York and then the INS on Ellis Island. According to Sam, he never he never made “full messenger.” But, he did rise to the top of the ranks of Civil Servants as General Counsel.
In between, Sam was an immigration inspector, chair of a board of special inquiry (the predecessor to today’s Immigration Courts), chief adjudicator, Assistant Commissioner for Adjudications, and District Director in New Orleans as well as serving in the Army during World War II and later as a Major in the Air Force Reserve. He knew the policies and the stories behind every regulation and operating instruction, as well as the history of all the immigration statutes from the 1924 Act on.
America’s immigrant heritage that Sam observed at Ellis Island and in his childhood neighborhood in Brooklyn greatly influenced his life. The 1975 movie “Hester Street,” about Jewish immigrants in New York in the early 20th century, was one Sam’s and his wife Betty’s favorites.
Sam loved providing clear, concise, practical, understandable legal advice to the INS Commissioner (then General Leonard Chapman, Jr., former Commandant of the Marine Corps) andvarious “operating divisions” of the INS in what was then known as the Central Office (“CO”). It likely came from his experience as a field officer who had to make decisions based on what came out of the CO. Gen. Chapman had Sam on “constant call” for legal advice.
Although Sam’s background was “old school up through the ranks,” he had a “new school” attitude and vision about the future of immigration law. Like his friend Maury Roberts at the BIA, Sam pioneered the use of the “Attorney General’s Honors Program” (of which I was a product) to bring a “new generation” of younger attorneys into the INS. That was later expanded by his immediate successors as General Counsel, David Crosland (Carter Administration) and Maurice C. “Mike” Inman, Jr. (Reagan Administration).
Sam had progressive views on using court decisions and common sense to make the immigration laws function better and easier to administer for everyone, at least in some small ways. One of the things we worked on was the “INS Efficiency Act,” originally introduced by Senator Ted Kennedy (D-MA) in 1979 and eventually incorporated into the “Immigration & Nationality Act Amendments of 1981,” enacted into law by P.L. 97-116 (Dec. 29, 1981).
This made a number of “common sense” fixes that Sam had noted over the years both by studying appellate court decisions and from answering recurring questions from INS operating divisions and DOJ litigation divisions handling our cases. It harkens back to a bygone time when public service in immigration was about “doing the right thing” and “promoting the common good” rather than advancing restrictionist ideological agendas.
My all-time favorite project with Sam was the July 1976 legal opinion approving and recommending the use of “prosecutorial discretion” by INS enforcement officials. This provided a sound legal basis for the INS’s “deferred action” program. Later, it formed part of the basis for the Deferred Action for Childhood Arrivals (“DACA”) program that has so greatly benefitted both America and deserving young people while, at least for a short time, helping to bring some badly needed rationality, humanity, uniformity, and proper prioritization of resources to an all too often scattershot and out of control DHS enforcement program.
Although written by me, that opinion reflects the “essence of Sam” — enforcement with rationality, humanity, prudence, fairness, attention to the views of courts, and standards to prevent arbitrariness. A full copy of that 1976 memorandum is linked below. My initials are at the bottom of the last page.
In light of all the nonsense making the rounds today, our conclusion is worth keeping in mind:
The power of various officers of the Executive Branch to exercise prosecutorial discretion is inherent and does not depend on express statutory authorization. . . . [T]he Service’s attempts to set forth some standards for the exercise of prosecutorial discretion are particularly appropriate.
My time in the General Counsel’s Office with Sam was all too short. He retired in 1977. At the time, he had 38 years of Federal service, but was only 57-years-old, with several more distinguished careers in front of him.
Sam went on to become one of the “founding partners” and managing partner of the Washington, D.C. Office of the powerhouse national immigration firm Fragomen, Del Rey, & Bernsen, now the international law firm known as “Fragomen.” He also became a noted educator in the field, lecturing and writing for the American Immigration Lawyers Association (“AILA”) and serving as an Adjunct Professor of Law at Catholic University and American University. I hired some of his former students in various capacities in some of my “future incarnations.”
Along the way, Sam tried to “recruit” me for his firm. But, I wasn’t quite ready to make the jump. Later, however, we did “reunite” for a short “transition period” when I succeeded him as the managing partner of Fragomen DC in 1993.
What I remember most about Sam from our stint in private practice was how loyal his clients were and how much they trusted him with their fate and future. One of his greatest joys was working with students, young professionals, and student advisors on issues relating to F-1, J-1, and H-1 non-immigrant visas. We also did some projects relating to the interpretation of statutes and regulations that we had a role in drafting and enacting back in the General Counsel days. His clients and the Government officials he dealt with regarded Sam with reverence, as both the “ultimate authority” and the “total straight shooter,” a somewhat unusual combination for a lawyer in private practice.
Sam and I kept in touch for many years at AILA Conferences and other educational events, even after I rejoined Government in 1995 as Chair of the BIA. Sam was an avid tennis player, and from time to time I would run into folks who had met him in courts of both the tennis and legal variety. Indeed, Sam kindly served as the “featured speaker,” at my investiture as an Immigration Judge at the Arlington Immigration Court in June 2003.
Along with folks like Maury Roberts, Ralph Farb, Charlie Gordon, Irv Applemen, and Louisa Wilson, Sam was one of my mentors and one of the all-time greats of American law. He represented a constructive, scholarly, and humane view of public service that has all but disappeared from the scene. Yet, he also saw into the future and was able to “reinvent himself” in new and dynamic ways after leaving public service. I had to do some of the sameand always looked to Sam as a role model.
Sam’s decisions, opinions, scholarship, and humanity helped shape generations of American immigration law. His work both in and out of Government changed the lives of thousands of immigrants for the better and helped build our nation into the diverse country it is today. His many students and those he mentored over the years, like me, continued his legacy and formed the forerunner of the “New Due Process Army.”
America and the world are richer and better because of Sam’s life and contributions. Sam knew the law, perhaps better than any other, and he used it to further humane goals whenever possible. Would that we had more role models like Sam in positions of responsibility and authority today! Sam, thanks for everything, and may you rest in peace after a “life very well lived!”
Here is a link to our 1976 legal opinion on prosecutorial discretion:
The Master Calendar Hearing–where dozens of people are squeezed into a room and forced to wait for hours in order to talk to a Judge for two minutes–has always been a headache and a waste of time. Now, though, as the coronavirus pandemic continues unabated, attending an MCH seems downright dangerous (lucky for us, we have an associate attorney who covers our MCHs – Don’t forget to wash your hands when (if) you get back!). I’ve written before about alternatives to the MCH, and given the expanding pandemic and the need for social distancing, now seems a good time to re-visit some of these ideas.
Before we get to that, I should mention that MCHs are not the only place where groups of non-citizens are packed together against their will. Far worse are our nation’s ICE detention facilities and private prisons, where conditions were already quite bleak (in the two years before the pandemic, 21 people died in ICE custody). Unfortunately, ICE has not taken effective action to protect detained asylum seekers and other non-citizens from the pandemic (at one facility in Virginia, for example, nearly 75% of detainees tested positive for COVID-19), and the agency seems to have little regard for the health of its detainees (or staff). As a colleague aptly notes, Anne Frank did not die in a gas chamber; she most likely died from typhus, which was epidemic in her detention camp.
Also, it’s worth noting that the National Association of Immigration Judges (the judges’ union) has been working hard for safer conditions in our nation’s Immigration Courts, even if EOIR management has been hostile to some of those efforts. Currently, non-detained MCHs have been suspended, but so far, there is no EOIR-wide policy for what to do instead. Some Immigration Judges and individual courts have made it easier to submit written statements in lieu of MCHs, but the process is still needlessly awkward and time consuming.
MCHs are no more efficient today than they were in olden times.
While we need a short-term fix so that MCHs can go forward during the pandemic, here I want to talk about longer-term solutions. Below are a few ideas for replacing in-person MCHs. While these ideas may not work in all cases, they will help most respondents (and their attorneys) avoid attending MCHs. This would save time and money for people in court, and would also save time and resources for the courts themselves, and for DHS. In addition, reducing the need to appear in person would help prevent the spread of disease. In short, doing away with MCHs is an all around win. So without further ado, here are some ideas to get rid of those pesky Master Calendar Hearings–
e-Master Calendar Hearings: EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–has been working towards electronic filing for decades, and in some courts, limited online filing is available. Given that the infrastructure is being put into place for online filing, EOIR should create an online MCH. There already exists a system for written MCHs, but this is a huge pain in the neck. It involves a burdensome amount of paperwork, and judges don’t always respond to the documents we file. This means that we lawyers do double work–we submit everything in writing and we have to attend the MCH. Given how unreliable it is, many attorneys (including yours truly) would rather attend the MCH than try to do it in writing.
An effective and reliable e-MCH would be easy to use and efficient. Most cases fit a clear pattern: Admit the allegations, concede the charge(s), indicate the relief sought and language spoken, designate the country of removal, and obtain a date for the Individual Hearing. For attorneys and accredited representatives who are registered with EOIR, this could all easily be accomplished through an online form, thus saving time for all involved.
Orientation Sessions for Unrepresented Respondents: One difficulty during the typical MCH is attending to unrepresented respondents. People who come to court without a lawyer tend to take more time than people who have attorneys. This is because the attorneys (usually) know what is expected at the MCH and are (hopefully) ready to proceed. For people without lawyers, the Immigration Judge (“IJ”) needs to explain what is going on, often through an interpreter. All this takes time and seems like busy work for the IJ (who often has to repeat the same litany multiple times during each MCH). Why not provide pre-MCHs with court staff instead of judges? There, unrepresented respondents can received a basic orientation about the process and be encouraged to find a lawyer. These sessions could be organized by language. Respondents who indicate that they will return with a lawyer can be given a deadline by which the lawyer can either submit the necessary information online (if e-MCHs have been implemented) or come to court if need be. Respondents who will not use a lawyer can be given a date to return for an in-person MCH with a judge. Even if e-MCHs are not implemented, having an orientation session would save significant time for judges and would make MCHs more efficient.
Empower DHS: In Immigration Court, the “prosecutor” works for the Department of Homeland Security (“DHS”). Most DHS attorneys are overwhelmed and overworked. They have little time to review cases in advance or to speak with opposing counsel prior to the MCH or the Individual Hearing. What if there were more DHS attorneys? What if we could pre-try cases, narrow issues, and maybe even hold depositions? If issues could be hashed out ahead of time, we could shorten or eliminate the need for a MCH, and we could make Individual Hearings more efficient.
All this seems pretty basic. The Immigration Courts are overwhelmed. Reducing or eliminating MCHs will free up judges to do substantive work. It will also save time for DHS, respondents, and their attorneys. And of course, given our new normal with the coronavirus, it will help keep everyone safe. Changes to the MCH system are long overdue, and are especially urgent due to the pandemic. Let’s hope that EOIR can finally rise to the occasion.
One could wonder why EOIR hasn’t done this already. Unfortunately, the answer is obvious: It’s a “built to fail system” FUBAR System, run by a maliciously incompetent politicized kakistocracy whose main objective is to screw immigrants and secondary objective is to degrade and demoralize its own employees.
Creative thinking and working collectively and cooperatively with knowledgeable “stakeholders” — private counsel, pro bono groups, NGOs, immigrants, judges, staff, and ICE attorneys — is actively discouraged if not outright prohibited by current the political kakistocracy. That’s what happens when a racist, xenophobic agenda replaces due process and fundamental fairness as the objective and vision of the system. A kakistocracy actually inhibits and suppresses creative positive change in favor of “political gimmicks” and “haste makes waste” non-solutions to problems. The Trump regime is “Exhibit A!”
That’s why true reform can’t come without:
regime change;
Article I;
return to a sole focus on due process and fundamental fairness through teamwork and innovation;
a merit based Immigration Judiciary at all levels; and
professional court administration accountable to that independent judiciary (not a political kakistocracy).
Thanks for pointing us in the right direction, Jason! I know from my experience that there are lots of other folks out there in private sector with some great ideas on how to make the Immigration Court System functional while advancing due process, fundamental fairness, and human rights.
This would be comprised of retired judges from all systems who could work on a volunteer basis to perform certain types of standard judicial tasks to free up Immigration Judges to concentrate on fairly resolving the most difficult legal issues at individual hearings and to work on their opinion writing.
Master calendar hearings, motions calendars, status calls, bond hearings, and certain types of hearings where the issues are primarily factual would be naturals for a Reserve Immigration Judge Corps. It also would allow the Immigraton Court System to be more responsive to workload fluctuations without the problems of “fire drill” overstaffing, understaffing, and “Aimless Docket Reshuffling” that currently plague the system.
Right now, we lack the political will to get the job done. That must start this November with “regime change” at all levels of our political system.
Elected officials who aren’t willing to prioritize and commit to an independent Article I Immigration Court dedicated to due process and fundamental fairness should be voted out of office. Enough of the nonsense, malicious incompetence, and inhumanity. Time for a change! We can’t afford the kakistocracy!
“Ricardo Javier Blanco, a citizen of Honduras, is a member of Honduras’s Liberty and Refoundation (“LIBRE”) Party, an anti-corruption political party that opposes the current Honduran president. After participating in six political marches, he was abducted by the Honduran police and beaten, on and off, for twelve hours. He was let go but received death threats over the next several months until he fled to the United States. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied all relief, and the Board of Immigration Appeals (“BIA”) affirmed. Blanco now petitions for review of the agency’s decision, arguing that the BIA and IJ erred in denying his asylum and withholding of removal claims on the basis that his treatment did not rise to the level of persecution. He also argues that it was improper to require him to corroborate his testimony to prove his CAT claim. Because the agency misapplied our precedent when determining whether Blanco had established past persecution, and because it did not follow the three-part inquiry we established in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), before requiring Blanco to corroborate his CAT claim testimony, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings.”
This should have been a “no brainer” asylum grant!
Instead, after two levels of disturbingly unprofessional administrative decision-making, now driven by racism and overt anti-immigrant bias, and one layer of “real court” review, the case is basically back to square one. No wonder this “Deadly Clown Court” ☠️🤡 is running a 1.4 million backlog, and counting!
Think we have the wrong folks on the “Immigration Bench?” You bet! Two smart patent lawyers from Baker Hostetler run legal circles around an IJ, the BIA, and OIL!
Interestingly, a significant number of students in my Georgetown Law Summer Semester Immigration Law & Policy (“ILP”)Class have been patent examiners and/or patent attorneys! They have all been amazing, both in class dialogue and on the final exam. I suspect it has something to do with analytical skills, meticulous research, and attention to detail — always biggies in asylum litigation!
That’s why we must end a “built to fail” system that preys on unrepresented or underrepresented asylum seekers in illegal, intentionally inhumane and coercive, detention settings, where adequate preparation and documentation are impossible and where judges, too often lacking in asylum expertise, humanity, and/or the time to carefully research and deliberate, are pressured to engage in “assembly line denials.”
And, thanks to the racial dehumanization embraced by the Supremes’ majority many refugees, disproportionately those with brown or black skins, are completely denied fair access to the asylum hearing system. They are simply treated by our highest Court like human garbage — sent back to torture or potential death in unsafe foreign countries without any due process at all. So, the systemic failure is not by any means limited to the “Immigration Star Chambers.”
A simple rule of judging that appears “over the heads” of the current Supremes majority: If it wouldn’t be due process for you or your family in a death penalty case, than it’s not due process for any “person.” Not “rocket science.” Just “Con Law 101” with doses of common sense and simple humanity thrown in. So why is it beyond the capabilities of our most powerful judges?
If there is any good news coming out of this mess, it’s that more talented litigators like Gary Levin and Aaron Rabinowitz from firms like Baker Hostetler are becoming involved in immigration and human rights litigation. They often run circles around Billy the Bigot’s ethically-challenged group of captive DOJ lawyers, who can no longer operate independently and ethically, even if they want to.
So, in a better future, after regime change, there are going to be lots of really great sources for better judges out there at all levels of the Federal Judiciary from the eventually independent Immigration Courts, to the U.S. District Courts and Magistrate Judges, to the Courts of Appeals, all the way to the Supremes.
At the latter, we need new and better Justices: Justices who understand immigration and human rights laws and the overriding human interests at stake, who will “lose” the White institutional racial bias and perverted right-wing ideologies that infect our current Court, and who are dedicated to making the vision of folks like Dr. King and Congressman John Lewis for “equal justice under law” and an end to dehumanization of persons of color a reality under our Constitution and within our system of justice!
There is no excuse for the current Supreme Court-enabled travesty unfolding in a biased, broken, and dysfunctional immigration system every day!
Due Process Forever!
This November, vote like our nation’s future existence depends on it! Because it does!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber Style
Subject: Re: [fedcourtlitigation] immigration court reopening in the hands of us attorney offices?
It was confirmed by EOIR Director McHenry today during the EOIR forum during the AILA conference.
Sabrina [Damast]
On Thu, Jul 23, 2020 at 2:31 PM Jorjani, Raha; Public Defender wrote:
It was announced yesterday at an IJ townhall that the decision of whether, when, and how to reopen Immigration Courts across the nation was in the hands of local U.S. Attorney offices. Has anyone seen any official support for this suggestion? I can’t seem to find a memo or other policy directive about it.
RAHA JORJANI| Supervising Immigration Defense Attorney, [Alameda County Public Defenders]
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The solution seems pretty obvious. With a coronavirus stimulus package coming up, the Dems should insist on:
Defunding of EOIR;
Transfer of all EOIR responsibilities and remaining funding for this fiscal year and any future fiscal years until an Article I or Article III Immigration Court is established to U.S. Magistrate Judges and the Administrative Office for U.S. Courts;
Absolute prohibition on any contact with the transferred functions by any employee of the Executive Branch except 1) a Government Attorney appearing in a particular matter; and 2) attendance at a meeting including representative members of the public to discuss fair and efficient Immigration Court administration.
Problem would be solved, for now. Moreover, this would provide the necessary “incentives” for the Article III Courts to establish a fair and efficient due process framework for Immigration Court proceedings that could be a model for the eventual Article I or Article III legislation. Put an immediate end to “malicious incompetence” by the DOJ and the Trump regime!
Due Process Forever! America’s Star Chambers,☠️⚰️ Never!
Section 13-3407 of the Arizona Revised Statutes, which criminalizes possession of a dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a violation of that statute.
You think this isn’t “Theater of The Absurd?” Let’s check out Fns 5 & 6 from the opinion:
5 We recognize that the Ninth Circuit, in whose jurisdiction this case arises, utilized a modified categorical inquiry in Alvarado, 759 F.3d at 1130–33, to discern whether an alien’s conviction under section 13-3407 involved a federally controlled substance and was therefore a predicate for removal under section 237(a)(2)(B)(i) of the Act. However, the Ninth Circuit did not expressly analyze the divisibility of section 13-3407 in that decision, nor did the court have the benefit of the Supreme Court’s articulation of divisibility in Mathis. Moreover, the circuit recently certified a similar issue to the Arizona Supreme Court. See Romero-Millan v. Barr, 958 F.3d 844, 849 (9th Cir. 2020) (asking the court to resolve whether Arizona statutes proscribing possession of drug paraphernalia and possession of a narcotic drug under sections 13-3415 and 13-3408 of the Arizona Revised Statutes, respectively, are divisible with respect to the identity of the drug involved in each offense). For these reasons, we do not consider Alvarado to be persuasive authority regarding the divisibility of section 13-3407, which, in light of Romero-Millan, we view as an unsettled issue in the Ninth Circuit.
6 We acknowledge that State v. Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *2 (Ariz. Ct. App. Feb. 16, 2016), and State v. Castorina, No. 1 CA-CR 08-0816, 2010 WL 2450117, at *4 (Ariz. Ct. App. June 17, 2010), suggest that the identity of the “dangerous drug” involved in a violation of section 13-3407 is not an element of the statute. However, the United States District Court for the District of Arizona recently reviewed both cases, found that their reasoning was flawed, and concluded that Arizona case law fails to provide a “clear answer[] as to the divisibility” of section 13-3407. United States v. Sanchez-Murillo, No. CR-19-00795-PHX-SPL, 2019 WL 3858606, at *2–3 (D. Ariz. Aug. 16, 2019) (alteration in original) (citation omitted). Accordingly, we are not persuaded that Prescott or Castorina “definitively answer[s] whether the dangerous drug requirement of [section] 13-3407[] is divisible.” Gonzalez-Dominguez v. Sessions, 743 F. App’x 808, 811 (9th Cir. 2018).
So, how do you think that the unrepresented, almost certainly detained, respondent did on these issues, assuming that he even can read the BIA’s decision or have someone accurately read It to him?
The whole Immigration Court System has become a judicially and Congressionally-enabled “Due Process Farce” befitting a third word failed state that our country now resembles under the Trump kakistocracy.
NO, those who say our democratic institutions are “holding up” under Trump are living in a parallel universe!
In early 2017, as Immigration and Customs Enforcement prepared to carry out the hard-line agenda on which President Trump had campaigned, agency leaders jumped at the chance to let two filmmakers give a behind-the-scenes look at the process.
But as the documentary neared completion in recent months, the administration fought mightily to keep it from being released until after the 2020 election. After granting rare access to parts of the country’s powerful immigration enforcement machinery that are usually invisible to the public, administration officials threatened legal action and sought to block parts of it from seeing the light of day.
Some of the contentious scenes include ICE officers lying to immigrants to gain access to their homes and mocking them after taking them into custody. One shows an officer illegally picking the lock to an apartment building during a raid.
At town hall meetings captured on camera, agency spokesmen reassured the public that the organization’s focus was on arresting and deporting immigrants who had committed serious crimes. But the filmmakers observed numerous occasions in which officers expressed satisfaction after being told by supervisors to arrest as many people as possible, even those without criminal records.
“Start taking collaterals, man,” a supervisor in New York said over a speakerphone to an officer who was making street arrests as the filmmakers listened in. “I don’t care what you do, but bring at least two people,” he said.
The filmmakers, Christina Clusiau and Shaul Schwarz, who are a couple, turned drafts of their six-part project called “Immigration Nation” over to ICE leadership in keeping with a contract they had signed with the agency. What they encountered next resembled what happened to Mary L. Trump, the president’s niece, who was eventually sued in an unsuccessful attempt to stop her from publishing a memoir that revealed embarrassing details about the president and his associates.
Suddenly, Ms. Clusiau and Mr. Schwarz say, the official who oversaw the agency’s television and film department, with whom they had worked closely over nearly three years of filming, became combative.
The filmmakers discussed their conversations on the condition that the officials they dealt with not be named out of fear that it would escalate their conflict with the agency.
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Read Caitlin’s full article at the link.
The multi-part documentary begins airing on Netflix on August 3. You can watch the trailer at this link:
See firsthand how your tax dollars are being largely wasted on cruel, unnecessary terrorizing of ethnic communities and populating the “New American Gulag” — “enforcement” that in too many cases actually harms our economy and our society and certainly diminishes both our integrity and humanity as a nation.
Catlin’s concluding paragraphs are worth keeping in mind:
The filmmakers said they came away with some empathy for the ICE officers, but became convinced that the entire system was harmful to immigrants and their families.
The problem, they said, was summarized in the first episode by Becca Heller, the director of the International Refugee Assistance Project.
“Is a government agency evil? No. Is every single person inside ICE evil? No,” Ms. Heller told the filmmakers. “The brilliance of the system is that their job has been siphoned off in such a way that maybe what they see day to day seems justified, but when you add it up, all of the people just doing their job, it becomes this crazy terrorizing system.”
We have all been harmed by Trump’s racist-driven “weaponization” of DHS and the Immigration Courts, and that includes the DHS employees and the Immigration Court employees who are caught up in this grotesque, often illegal, and overall immoral abuse of government authority and resources.
We should also be concerned about the First Amendment implications of Trump’s attempts to misuse Government authority to manipulate the election in his favor by, once again, suppressing truth in reporting. Thank goodness we have courageous journalists like Caitlin and these filmmakers to keep exposing the ugly truth about the Trump/Miller/Wolf/Barr ongoing White Nationalist immigration charade.
I am pleased to announce a big win today before the Second Circuit. The Opinion is attached.
The Court held that the government is equitably estopped from denying an application for adjustment of status where: (1) it commits “affirmative misconduct” by failing to comply with an affirmatively required procedure – in this case, the failure to issue a Receipt or Rejection Notice in response to an attempted filing; (2) the applicant reasonably relies on the agency’s misconduct/inaction; and (3) the applicant is prejudiced thereby.
The interesting twist in this case is that the Court declined to reach the underlying statutory issue – concerning the CSPA – on which the District Court ruled in our favor. My take, having litigated and argued the case in both courts, is that the panel was genuinely flabbergasted that the government was pursuing the appeal and took the opportunity to stick it to DHS and issue a ruling on estoppel. The District Court did not even address estoppel, which was my alternative argument and occupied less than 5% of my briefing. My understanding is that the District Court decision – affirmed on other grounds – can still be cited for the substantive/legal conclusions it made regarding the CSPA. (Please correct me if I am wrong).
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Jeffrey A. Feinbloom
FEINBLOOM BERTISCH LLP
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Thanks, Jeffrey. The term “Affirmative Misconduct” could be used to describe the overall conduct of DHS and the entire immigraton kakistocracy under the Trump regime.
Historical Footnote: I worked on Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976) (holding that government official’s “noncompliance with an affirmatively required procedure” constituted “severe” misconduct, and reversing Board of Immigration Appeal’s (“BIA”) order of deportation without remanding to agency for fact-finding or further proceedings) when I was a young attorney in the “Legacy INS” Office of General Counsel, then headed by the legendary immigration guru Sam Bernsen, in 1976.
The Corniel-Rodriguez case led directly to the eventual creation of the section 212(k) waiver for innocent misrepresentations on visa applications as part of a larger “INS Efficiency Bill” proposed by our Office and eventually enacted by Congress. Just shows that there was a time when those running the U.S. immigration system actually “did the right thing,” at least on some occasions. Perhaps not surprisingly, “doing the right thing” often also proved to be the “efficient thing” by promoting justice and avoiding unnecessary, and often losing, litigation.
Those days, of course, are long gone. The Government immigration system is now run by hacks lacking both expertise and values and who, with the assistance of the DOJ, intentionally clog the Federal Courts with litigation that likely would have been deemed frivolous, unethical, or at least not in the best interests of the public in earlier times.
It also highlights a severe deterioration in the performance of the Solicitor General’s Office in the DOJ. That office used to encourage all Federal agencies to develop administrative solutions in cases where, after review of the Article III Courts’ “adverse decisions,” the agency position below appeared to be indefensible in future litigation.
Now, the Solicitor General is actually a “cheerleader” for some racially motivated appeals against lower court decisions correctly favoring immigrants and asylum seekers. These appeals are often “supported” by very obvious pretexts for invidious actions by the regime. Given the lack of integrity, courage, and commitment to racial justice on the current Supremes’ majority, the “bad guys” sometimes improperly prevail.
But, it’s actually no more mystery to outgoing Solicitor General Noel Francisco what motivates Stephen Miller & co. than it is to the rest of us. It’s just that Francisco has consciously chosen to be “part of the problem,” something that should be remembered when the history of his disgraceful tenure in office is written.
It also shows that whenever we finally get a return to “Good Government,” a “cleanout” of EOIR and creation of an Article I Immigration Court needs to be the first thing on the list; but, a thorough re-examination of the role of every part of a corrupt DOJ that has failed to act independently and has furthered a program of overt racism, inequality, and injustice, and often argued disingenuously for “worst practices and worst interpretations,” is also an absolute necessity.
To state the obvious, the fairness and efficiency of our immigration system as well as our entire U.S. Justice system is actually in full throttle reverse under the Trump kakistocracy.
“Andrei Skripkov, a citizen of Russia, seeks review of a decision by the Board of Immigration Appeals (BIA) upholding an Immigration Judge’s (IJ’s) denial of his application for asylum and the withholding of removal. Skripkov asserted in his application that he was persecuted in his home country on account of his political opinion. He specifically contended that his anticorruption whistleblowing activities motivated Russian officials to persecute him. The IJ and the BIA, on the other hand, found that the officials were motivated solely by their pecuniary interest in furthering a corrupt scheme disrupted by Skripkov. In his petition for review, Skripkov argues that the BIA erred in disregarding evidence that he would be criminally prosecuted for his political opinion if he is returned to Russia. For the reasons set forth below, we GRANT Skripkov’s petition for review and REMAND the case to the BIA for further proceedings consistent with this opinion.”
When the objective is to reject, not protect, mistakes are inevitable. This is just the tip of the iceberg. Most folks whose lives are being chewed up and spit out by the “designed to be unjust” Immigration Court system don’t have the good fortune to be represented by Brenna D. Duncan or someone of her caliber.
Indeed, under the ongoing illegal travesty that now passes for “justice” in America, most legal asylum seekers are turned away at the border without any hearing or meaningful process at all.
Interestingly, Brenna D. Duncan, a rising superstar at the international commercial law firm of Perkins Coie appears to have practiced primarily in the area of commercial litigation. Yet, she clearly understands immigration and human rights law better than the Immigration Judge and the BIA Appellate Immigration Judges involved in this case.
That’s why actual experience representing immigrants and asylum seekers is such a critical qualification for good Immigration Judges at both the trial and appellate levels as well as being something that should be a factor in appointing future Article III Judges at all levels right up to and particularly including the Supremes. Years of one-sided prosecutorial or law enforcement experience is often no substitute for the “real deal” of experience understanding immigrants and asylum seekers from their perspective.
The current Immigration Court system is intentionally and fatally skewed against asylum seekers, immigrants, due process, and fundamental fairness. Until that changes, equal justice under law will continue to be a cruel, unachieved illusion in our American justice system.
At the end of April, Florida federal Judge Marcia Cooke ruled that Immigration and Customs Enforcement prisons were such a tinderbox for the novel coronavirus that ICE had to begin efforts at letting people out. The dangers of the pandemic inside three immigrant-detention centers in the state threatened to put ICE on the wrong side of constitutional prohibitions on cruel and unusual punishment.
Thousands of miles away, in Arizona, several lawsuits on behalf of people detained by ICE were in various stages of advancement. One, brought in April by the Florence Immigrant and Refugee Rights Project, sought to release at least eight people at risk of contracting COVID-19 into sponsor custody.
But instead of preparing to release migrants in detention, ICE did something both the Centers for Disease Control and the Justice Department’s Bureau of Prisons had warned against. They transferred 74 detainees to a for-profit prison in central Virginia called ICA Farmville.
Both medical staff and already-overtaxed employees at ICA Farmville, according to court documents and interviews, had warned ICE against taking in new detainees. ICE had even assured Farmville staff it would use a different Virginia prison as a way-station to quarantine people should transfers have to go through.
Instead, in early June, ICE sent the 74 people—from Arizona’s Florence and Eloy detention centers and Florida’s Krome—directly to ICA Farmville. Staff fears manifested almost immediately. Fifty-one detainees tested positive for COVID-19.
A month later, ICA Farmville is in crisis. It has at least 268 out of around 360 detained people positive for the virus, making the jail by far the most stricken facility in ICE’s network of lockups. While ICA Farmville is claiming that vanishingly few are symptomatic, detainees, backed by medical records seen by The Daily Beast, say in dire terms that isn’t true.
“We think we’re going to die at any time. The help we need we’re not getting,” said a man detained at ICA Farmville whom The Daily Beast will call Michael. “We think we’re going to die without seeing our families. A lot of people here are suffering.”
Former employees say the coronavirus has exposed longstanding failings at ICA Farmville—namely, a company that values making money over protecting either detainees or its staff. At least 22 guards have contracted the coronavirus; others have responded to desperate, panicked and agitated detainees with at least three incidents of violence between June 20 and July 1. “There was no reason to intake any more detainees,” one former employee said, “but it’s all about profit.”
To immigration attorneys and advocates, the cause of the disaster unfolding at ICA Farmville is clear: ICE’s decision to transfer detainees into the facility rather than releasing them in accordance with current and likely future judicial rulings.
ICE “appears to be shifting people around to avoid having to let people out, through being forced in lawsuits,” said Jesse Franzblau, a senior policy analyst at the National Immigrant Justice Center.
“In my opinion, to avoid releases, they’re shifting people around the country or moving them to other detention facilities outside of south Florida,” said Heriberto Hernandez, a Florida immigration attorney who had a client at Krome in Miami, one of the jails cited in Judge Cooke’s ruling, moved into ICA Farmville.
Hernandez said his client at Farmville has tested positive for COVID-19 and “all they did was give him cold medicine.”
“There’s no question whatsoever that this [transfer] was the result of the lawsuits,” said Marc Van Der Hout, an Arizona attorney who sued ICE to release a husband and wife from the “tremendous outbreak” at the Eloy detention center. “There are four lawsuits I’m personally aware of, and possibly more. There’s no doubt in my mind they were doing this to avoid the repercussions of the lawsuits.”
ICE denies conducting any legal shell game over the detainees, and says its motivations were about the health of the detainees.
. . . .
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Read the rest of the article at the link.
Of course, this a is a shell game! You don’t need a law degree to figure that out. And, the claim that this is all about detainee heath is patently absurd. The best interests and health of detainees never enter into it except to the minimal extent necessary to avoid wrongful death suits (not very difficult given the Supreme’s tilt in favor of protecting officials who kill people of color).
There is an even more serious problem: The failure of the Federal Judiciary to throw scofflaws like DHS Acting Secretary Chad Wolf and ICE Acting Director Matt Albence in jail for contempt for their agency’s overt efforts to avoid lawful court orders while endangering the health and safety of both the detainees and the public.
WhatICE is doing in the “New American Gulag” is essentially a “crime against humanity.” We need better Federal Judges and Justices who will take their oaths to uphold our Constitution in the face of such grotesque and obvious Executive abuses seriously!
Due Process Forever! The New American Gulag, Never!
Ira Kurzban ESQUIRE Legendary American Immigration Lawyer
Peggy Taylor reports for the Section:
I am writing to let you know that the ABA Section of International Law will be awarding Ira the distinguished Leonard J. Theberge Award for Private International Law. The award is in memory of Section Chair Theberge (1979-1980). The Section established the award to honor persons who have made distinguished, long-standing contributions to the development of private international law.
Obviously, Ira more than deserves this award. Anyone practicing immigration law for more than two minutes knows about Ira — not only about his invaluable Sourcebook but also his cutting edge litigation, his contributions to immigration law scholarship, and his genuine support of the immigrant community.
The Section will honor Ira in a virtual ceremony on Friday, 7.31.2020 at 12:00 pm ET. I hope you can attend the ceremony. I am pasting a registration link at the end of this email. Also, I am copying the current and incoming Section Chairs on this email.
Please join me in congratulating Ira! It has been my honor to work with Ira and each of you on the Crystal Ball Panel. Be well and safe. Best. Peggy
Dear All – Writing with schedule information I received about Ira’s award. The award ceremony is part of a Section Council Meeting. While the meeting starts at 12:00 pm, the awards ceremony part of the meeting will probably not start until around 2:30 pm. Best. Peggy
Here are a few of the tributes from our fellow “panel members:”
Congratulations, Ira! Well deserved. I am actually old enough to remember when Ira was listed among the 40 lawyers under 40 to watch! Seems like yesterday!
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Paul W. Virtue
Mayer Brown LLP
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A giant in the field — and an indispensable part of every immigration lawyer’s professional journey.
Hon. Mimi Tsankov
U.S. Immigration Judge
V.P. Eastern Region NAIJ
(Personal Capacity Only)
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Many, many congrats to our friend and colleague Ira for his lifetime commitment to human rights and furthering legal excellence!
“Mario Ordonez Azmen petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to remand and dismissing his appeal of the denial of his asylum and statutory withholding claims under the Immigration and Nationality Act. The BIA did not adequately explain its conclusion that Ordonez Azmen’s proposed social group of former gang members in Guatemala was not particular. Nor did the BIA adequately explain its reasons for denying Ordonez Azmen’s motion to remand based on evidence of new country conditions. Finally, we hold that under 8 U.S.C. § 1158(a)(2)(D), changed circumstances presenting an exception to the one-year deadline for filing an asylum application need not arise prior to the filing of the application, and the BIA erred when it refused to consider Ordonez Azmen’s alleged changed circumstances on the ground that the change occurred while his application was pending. We GRANT the petition, VACATE the BIA’s decision, and REMAND for reconsideration of Ordonez Azmen’s application for asylum and statutory withholding of removal and his motion to remand, consistent with this opinion.”
[Hats off to Zachary A. Albun, Albert M. Sacks Clinical Teaching & Advocacy Fellow, Harvard Immigration & Refugee Clinical Program, Harvard Law School, who writes: “The Court found the INA unambiguously provides that “material changed circumstances” excepting the one year filing deadline need not precede filing of the asylum application (i.e., you can rely on a changes that occur during proceedings). The court further held that W-G-R- & M-E-V-G- do not create a per se rule that “former gang member” PSGs lack cognizability. Another important point is that the Court relied on two unpublished BIA decisions that we’d submitted in determining it need not defer to the agency, but instead decide the case based on its own reading of the governing statute and regulations. Major credit and a huge thanks goes to my co-counsel at the University of Minnesota Federal Immigration & Litigation Clinic and the National Immigrant Justice Center, and to my colleagues and students at HIRC.”]
“Maria Cared Millan-Hernandez petitions for review of a 2018 Board of Immigration Appeals decision dismissing her appeal of an Immigration Judge’s denial, without an evidentiary hearing, of her motion to suppress evidence. On appeal, we consider whether Millan-Hernandez provided sufficient evidence of an egregious Fourth Amendment violation to warrant an evidentiary hearing. We conclude that she did and that the agency applied an incorrect standard in determining otherwise. Accordingly, the petition for review is GRANTED and the cause REMANDED for further proceedings consistent with this Opinion.”
[Hats off to AADHITHI PADMANABHAN, The Legal Aid Society, New York, NY (Nicholas J. Phillips, Joseph Moravec, Prisoners’ Legal Services of New York, Buffalo, NY, on the brief), for Petitioner!]
“Carlos Rendon began living in the United States as a lawful permanent resident in 1991. Then in 1995, he pled guilty to resisting a police officer with violence. Under immigration law this offense qualifies as a crime involving moral turpitude (“CIMT”). At the time, Mr. Rendon’s sentence of 364 days in state custody did not affect his status as a lawful permanent resident. But Congress later changed the law. In 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) made him deportable based on his CIMT conviction. And in 1997, the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) created the “stop-time rule,” which meant people convicted of certain crimes were no longer eligible for a discretionary form of relief known as cancellation of removal. Approximately 25 years after his guilty plea, an immigration judge found Mr. Rendon removable and ruled he was no longer eligible for cancellation of removal on account of the stop-time rule. On appeal, Mr. Rendon now argues that it was error to retroactively apply the stop-time rule to his pre-IIRIRA conviction. After careful review, we conclude that Mr. Rendon is right. We reverse the decision of the Board of Immigration Appeals and remand for further proceedings.”
[Hats off to Anthony Richard Dominquez at Prada Urizar, PLLC!]
“David Nunez-Vasquez seeks review of the Board of Immigration Appeals (“BIA”) finding that he was removable because he had been convicted of two crimes involving moral turpitude (“CIMT”)—a conviction for leaving an accident in violation of Va. Code Ann. § 46.2–894 and a conviction for use of false identification in violation of Va. Code Ann. § 18.2–186.3(B1). We hold that neither conviction is categorically a crime involving moral turpitude. We therefore grant Nunez-Vasquez’s petition for review, vacate the BIA’s order of removal, order the Government to return Nunez-Vasquez to the United States, and remand to the BIA for further proceedings.”
[Hats off to Ben Winograd, Trina Realmuto, Kristin Macleod-Ball, Nancy Morawetz and Samantha Hsieh!]
“In these tandem cases, Jervis Glenroy Jack and Ousmane Ag each petition for review of decisions of the Board of Immigration Appeals (BIA) ordering them removed based on their New York firearms convictions. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(C). We principally conclude that the statutes of conviction, sections 265.03 and 265.11 of the New York Penal Law, criminalize conduct involving “antique firearms” that the relevant firearms offense definitions in the Immigration and Nationality Act do not. This categorical mismatch precludes the petitioners’ removal on the basis of their state convictions. We therefore GRANT the petitions, VACATE the decisions of the BIA, and REMAND both causes to the agency with instructions to terminate removal proceedings.”
[Hats off to Nicholas J. Phillips, Joseph Moravec, Prisoners’ Legal Services of New York, Buffalo, NY; Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Jervis Glenroy Jack, Petitioner in No. 18-842-ag., Stephanie Lopez, Neighborhood Defender Service of Harlem, New York, NY; Alan E. Schoenfeld, Andrew Sokol, Beezly J. Kiernan, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Ousmane Ag, Petitioner in No. 18-1479-ag.!]
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Remember, unlike most so-called “civil litigation,”lives and futures are at stake in every one of these cases. It’s like sending in brain surgeons trained by the “American Academy of Morticians.” Over and over, the Trump DOJ has shown itself more interested in “upping the body count” than on fairness, due process, and just results at EOIR. Is there a “breaking point” at which the Article IIIs will finally get tired of correcting the BIA’s mistakes and doing their work for them?
Good thing the BIA isn’t sitting for the final exam in my “Immigration Law & Policy” course at Georgetown Law. Even “the curve” might not be enough to save them.
Back before the 2016 election, GOP backbench Jim Crow hate monger Senator Jeff “Gonzo Apocalypto” Sessions saw a kindred spirit who would help him realize his whitewashed, faux Christian view of America: Donald Trump. Becoming the first Senator to endorse Trump got Gonzo a ticket to the U.S. Attorney General’s Office, where he quickly established himself as probably the worst inhabitant after the Civil War and before Billy Barr ( a period that notably includes “John the Con” Mitchell).
During his tenure, Gonzo separated families, caged kids, targeted vulnerable Latino refugee women for abuse, illegally punished “sanctuary cities,” expanded the “New American Gulag,” diverted prosecutorial resources from real crimes to minor immigration violations, expanded the “New American Gulag,” advocated discrimination against the LGBTQ community under the guise of religious bigotry, encouraged police brutality against Black Americans, aided efforts to disenfranchise Black and Latino voters, spread false narratives about immigrant crime and asylum fraud, dissed private lawyers, stripped Immigration Judges of their authority to control their own dockets, multiplied the Immigration Court backlogs, illegally tried to terminate DACA while smearing Dreamers, spoke to hate groups, issued unethical “precedent decisions” while falsely claiming to be acting in a quasi-judicial capacity, interfered with asylum grants and judicial independence, put anti-due-process production quotas on Immigration Judges, attempted to dismantle congressionally mandated “know your rights” programs, to name just a few of his gross abuses of public office. Indeed, other than Stephen Miller and Trump himself, how many notorious child abusers get to walk free in America while their victims suffer lifetime trauma?
Despite never being the brightest bulb in the pack, his feeble attempt at “legal opinions” sometimes drawing ridicule from lower court judges, Gonzo is generally credited with doing more than any other Cabinet member to advance Trump’s agenda of hate and White Nationalist bigotry. He actually was dumb enough to believe that his unswerving dedication to a program of promoting the white race over people of color and Christians over all other religions would ingratiate him with Trump.
That would assume, however, that Trump had some guiding principle, however vile and disgusting, beyond himself. Sessions might be the only person in Washington who thought racism would trump self-protection. I’m not saying that Trump isn’t a committed racist — clearly he is.Just that his commitment to racism is subservient to his only real defining characteristic — narcissism. Just ask his niece, Mary.
Gonzo failed in the only thing that ever counted: Protecting Trump, his family, and his corrupt cronies from the Mueller investigation. It wasn’t, as some have inaccurately claimed, a show of ethics or dedication to the law.
Even Gonzo realized that participating in an investigation involving a campaign organization of which he was a member and therefore both a potential witness and target, would be an egregious ethical violation that could cost him his law license as well as a potential criminal act of perjury, given that he had testified under oath during his Senate confirmation that he intended to recuse himself. Apparently, that was on a day when Trump was too busy tweeting or playing golf to focus on the implications of that particular statement under oath by his nominee.
After Trump fired him, Gonzo’s political fortunes took a sharp downturn. A guy who polled 97% of the vote in running unopposed for the Senate in 2014, polled only 38% of the vote in overwhelmingly losing the GOP primary to former Auburn Football Coach Tommy Tuberville. Tommy, a “Trump loyalist” with extreme far-right views and no known qualifications for the job, is not much of an improvement over Sessions.
Perhaps the only good news is that Alabama currently has a very decent and competent U.S. Senator, Doug Jones (D), who represents all of the people of the state. Everybody should support Doug’s campaign to maintain decency and commitment to equal justice in Government.
For those who want a further retrospective on Sessions’s grotesque career of promoting a return to Jim Crow while on the public dole, I recommend the following articles from Mother Jones and the Advocate:
