Chevron Doctrine – Page 5 – immigrationcourtside.com

UNPUBLISHED 2D CIR REMINDS BIA THAT “PERSECUTION”DOESN’T REQUIRE ACTUAL PHYSICAL HARM — Mann v. Sessions

KEY QUOTE:

“Were the only grounds available to Mann those of future persecution, we would be inclined to affirm. But however unsuccessful Mann’s case may be with respect to future persecution, without a full consideration of the first prong of “persecution”, that is, of “past persecution”, the IJ’s analysis is incomplete, and thus the result in this suit invalid. In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate.

In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate. Poradisova, 420 F.3d at 79-80. Past persecution can be established by harm other than threats to life or freedom, including “non-life-threatening violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006). And, while the harm must be severe, rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006), it is sufficient, in order to show past persecution, that the applicant was “within the zone of risk when [a] family member was harmed, and suffered some continuing hardship after the incident.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).

Mann’s claim of past persecution rested on the following incidents: Mann and his brother were longtime members of the Congress Party. Members of opposition parties, the Akali Dal Party and the Bharatiya Janata Party (“BJP”) had successively solicited Mann and his brother’s departure from the Congress Party to join their parties. After Mann and his brother refused to depart the Congress Party, the opposition party members stopped Mann and his brother in the street and assaulted Mann’s brother. At the time of the assault, both Mann and his brother were in a car in the middle of doing political work. Mann managed to escape the car and their attackers. His brother, however, was severely injured: he both lost a leg and suffered mental incapacitation. Subsequently, Mann fled his hometown, residing in Chandigarh, a neighboring city, for two months, and, after that, moved to Delhi. During that time, his family was responsible for caring for his brother’s permanent disabilities and injuries.

Upon review, the IJ found the fact that Mann himself had not suffered physical harm to be dispositive of his past persecution claim. Yet physical harm is not always needed for a showing of past persecution. And, it is not required in an analysis undertaken under Tao Jiang’s “zone of risk” and “continuing hardship” tests.

Because (i) the IJ’s analysis does not directly address the question of whether Mann was sufficiently within “the zone of risk” when a family member (here, his brother) was seriously harmed, and, (ii) it is certainly conceivable that on direct reconsideration Mann’s flight from his hometown and help to his family in caring for his brother constitutes the sufferance of “some continuing hardship,” we hereby GRANT Mann’s petition for review, and VACATE the decision of the BIA. We REMAND Mann’s claim of persecution to the BIA for further consideration in light of Tao Jiang’s “zone of risk” and “continuing hardship” requirements.”

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Another example of faulty asylum analysis by the BIA. Why does the Supreme Court require Federal Courts to “defer” to a supposedly “expert” administrative tribunal that all too often appears to have less expertise in applying asylum law than the Article III Courts? Also, why doesn’t the Second Circuit publish helpful cases like this so that they can be widely cited and used as a tool to improve BIA adjudications?

According to the UN Handbook, credible asylum seekers should be given “the benefit of the doubt.” That’s not happening in some Immigration Courts and on some BIA panels.Why not? What’s the excuse?

Just another example of why we need an independent Article I Immigration Court. And, we need a diverse BIA with real expertise and an overriding commitment to fairness, due process, careful appellate adjudication, and correct application of human rights laws.

PWS

09-11-17

3RD CIR REAFFIRMS THAT 18 USC 16(B) “CRIME OF VIOLENCE” AS INCORPORATED INTO THE INA IS UNCONSTITUTIONALLY VAGUE: Mateo v. Attorney General — Supremes Remain MIA

151160p

Before: McKEE, JORDAN, and VANASKIE, Circuit Judges.

OPINION BY: JUDGE VANASKIE

KEY QUOTE:

“The petitioner in Baptiste, like Mateo, faced removal on the basis of his purported status as an alien convicted of a crime of violence under § 16(b). As stated previously, § 16(b) defines a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In order to determine whether the crime of conviction is a crime of violence under § 16(b), courts utilize the same categorical approach that was applied to the ACCA’s residual clause. Baptiste, 841 F.3d at 617. The petitioner in Baptiste argued that the Supreme Court’s holding in Johnson striking down the residual clause should apply to negate § 16(b). After comparing the features of the § 16(b) analysis to those found to contribute to the unconstitutionality of the residual clause in Johnson, we agreed that the same defects were present in § 16(b), rendering the provision unconstitutional. Regarding the first feature, we recognized that the same “ordinary case inquiry” is used when applying the categorical approach in both contexts. Id. Like the residual clause, § 16(b) “offers no reliable way to choose between . . . competing accounts of what” that “judge- imagined abstraction” of the crime involves. Johnson, 135 S.Ct. at 2558. Thus, we concluded in Baptiste that “the ordinary case inquiry is as indeterminate in the § 16(b) context as it was in the residual clause context.” 841 F.3d at 617. Turning to the second feature—the risk inquiry—we observed that despite slight linguistic differences between the provisions, the same indeterminacy inherent in the residual clause was present in § 16(b). Id. “[B]ecause the two inquiries under the residual clause that the Supreme Court found to be indeterminate—the ordinary case inquiry and the serious potential risk inquiry—are materially the same as the inquiries under § 16(b),” we concluded that “§ 16(b) is unconstitutionally vague.” Id. at 621. This conclusion applies equally to Mateo’s petition. Our treatment of § 16(b) is in step with the Sixth, Ninth, and Eleventh Circuits, which have all similarly deemed the provision to be void for vagueness in immigration cases. See Shuti, 828 F.3d at 451; Dimaya, 803 F.3d at 1120; Golicov v. Lynch, 837 F.3d 1065, 1072 (10th Cir. 2016). The Seventh Circuit has also taken this position in the criminal context. See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015). In fact, the only circuit that has broken stride is the Fifth Circuit.7 See United States v. Gonzalez-Longoria, 831 F.3d 670, 677 (5th Cir. 2016) (en banc). In the meantime, we await the Supreme Court’s decision in the appeal of Dimaya.”

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The Dimaya case before the Supremes (again) should be a good test of whether newest Justice Gorsuch will adhere to his strict constructionist principles where they will produce a favorable result for a migrant under the immigration laws.

The Johnson case, relied on by the Third Circuit, was written by none other than the late Justice Antonin Scalia, a leading strict constructionist and conservative judicial icon, who nevertheless found that his path sometimes assisted migrants in avoiding removal. So, on paper, this should be a “no brainer” for Justice Gorsuch, who has also been critical of some of the BIA’s “Chevron overreach” and non-responsiveness to Article III Courts.

PWS

09-07-17

GOBBLEDYGOOK CENTRAL: After 12 Years Kicking Around The System, 9th Circuit Declines Chevron Deference To Matter of Cortez Canales, 25 I. & N. Dec. 301 (BIA 2010) & Punts Issue Back To BIA — Lozano-Arredondo v. Sessions — Why “Chevron Must Go!” — Somewhere In This Judicially-Created Mess, It’s All About A 2-Decades Old “Petty Theft” Conviction!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/11-72422.pdf

Key quote:

“We grant Lozano-Arredondo’s petition and remand to the BIA. We hold, first, that petit theft under Idaho law does not qualify categorically as a crime involving moral turpitude. We also hold that under the modified categorical approach, the record of conviction is inconclusive. Because the effect of that inconclusive record presents an open legal question now pending before another panel of this court, our analysis ends there. On remand, once this burden of proof question is resolved, the BIA should determine whether Lozano- Arredondo’s conviction qualifies as a crime involving moral turpitude under the modified categorical approach, unless the case is resolved on other grounds.

Second, we hold the BIA erred by deciding at Chevron step one that an “offense under” § 1227(a)(2)(A)(i) does not include the within-five-years element. Because the BIA “erroneously contends that Congress’ intent has been clearly

24 LOZANO-ARREDONDO V. SESSIONS

expressed and has rested on that ground, we remand to require the agency to consider the question afresh.” Delgado, 648 F.3d at 1103–04 n.12 (quoting Negusie, 555 U.S. at 523) (internal quotation marks omitted); see INS v. Ventura, 537 U.S. 12, 16–17 (2002). In light of this holding and the explanations we have given, the BIA must reconsider its interpretation of the phrase “offense under” in § 1229b(b)(1)(C).”

PANEL: Circuit Judges William A. Fletcher, Raymond C. Fisher and N. Randy Smith

OPINION BY: Judge Fisher

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Com’ on Man! This case has been around the system since 2005 — 12 years! The conviction is now two decades old. The case depends on two legal questions.

The 9th Circuit should answer the legal questions and either 1) affirm the BIA’s final order of removal, or 2) remand the case to the BIA to apply the law that has been determined by the 9th Circuit to the facts of this case. The court’s prose is impenetrable; the court’s rationale, based on Chevron, is irrational.

It’s time for Chevron to go and for Article III Courts to do their job of deciding legal questions rather than bogging down the system with infinite delays through needless remands to have the BIA pass on difficult legal questions. That’s the Article III Courts’ Constitutional function; they have been avoiding it for years under the Supreme’s judge-made facade of Chevron and Brand X.

(Yes, I know the 9th Circuit is only following Chevron, as they are bound to do. This is something the Supremes need to address, sooner rather than later. The result in this case is pure legal obfuscation.)

Oh yeah, while we’re at it, if there is an “open legal question” before another panel of the 9th Circuit, why remand the case to the BIA which can’t resolve that? Why not send this case to the “other panel” or ask your colleagues on the other panel if they could expedite their consideration of this issue?

PWS

08-08-17

3rd Cir. “Just Says No” To DOJ Request For Remand To Give BIA Chance To Misconstrue Statute — PA misdemeanor count of obstructing the administration of law or other governmental function is categorically NOT a CIMT — Ildefonso-Candelario v. Atty. Gen.

http://www2.ca3.uscourts.gov/opinarch/163625p.pdf

Key quote:

“Instead of defending the conclusion that section 5101 is categorically a crime involving moral turpitude, the government requests a remand without decision to permit the BIA to reconsider its position in the matter. See Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006); see generally SKF USA Inc. v. United States, 254 F.3d 1022, 1027-30 (Fed. Cir. 2001) (outlining approaches to agency remand requests). The government points out that the BIA is generally entitled to Chevron deference for reasonable interpretations of ambiguous terms, Mehboob, 549 F.3d at 275, and theorizes that the BIA might conjure up an interpretation of the term “moral turpitude” enabling a conclusion that section 5101 categorically involves “conduct that is inherently base, vile, or depraved,” Knapik, 384 F.3d at 89.

Yet the government has been unable, either in its brief or at oral argument, to articulate any understanding of the phrase “crime involving moral turpitude” that could plausibly encompass section 5101. This is not because of a failure of imagination. It instead reflects the simple fact that there is no conceivable way to describe the least culpable conduct covered by section 5101 — such as the illegal but nonviolent political protest described in Ripley — as inherently vile, or as “a reprehensible act committed with an appreciable level of consciousness or deliberation.” Partyka, 417 F.3d at 414. Moreover, no “emerging case law,” Ren, 440 F.3d at 448, involving either section 5101 or the definition of moral turpitude in other contexts calls for giving the BIA a second bite at the apple. See Jean-Louis, 582 F.3d at 469 (declining to remand where the relevant legal materials, including BIA decisions, “lead[] inexorably to the conclusion” that an offense is not morally turpitudinous).

Under the circumstances, we see no reason for remanding without correcting the legal error apparent on the face of the petition. See Mayorga v. Att’y Gen., 757 F.3d 126, 134 (3d Cir. 2014); cf. City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013) (“[W]here Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.”). We thus deny the government’s request for a voluntary remand and hold that 18 Pa. Cons. Stat. § 5101 is not categorically a crime involving moral turpitude.”

PANEL: JORDAN, KRAUSE, Circuit Judges and STEARNS, District Judge.

OPINION BY: JUDGE STEARNS

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Looks like the 3rd Circuit is starting to get the picture on how the BIA, under pressure from the politicos in the DOJ to produce more removals, has a strong tendency to construe the law against respondents and in favor of just about any DHS position that will facilitate removals.

That’s why it’s time for the Article III Courts to put an end to Chevron and the pro-Government, anti-individual results that it favors. “Captive” administrative tribunals responsible to Executive Branch politicos can’t be trusted to fairly and independently construe ambiguous statutory language. That’s properly the job of the Article III Courts; they have been shirking it for far too long! The Supremes have essentially reversed the results of Chief Justice John Marshall’s “victory” over President Thomas Jefferson in Marbury v. Madison!

PWS

08-04-17

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder. (In addition to the former Board member, one of the included IJs also served as a temporary Board member). The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows. After initially ceding a limited duress exception to the Board, DHS recently changed its position. In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim. First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself. As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden. The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17

THE ASYLUMIST: Jason Dzubow Wins Key “Firm Resettlement” Case — Wonders Why BIA Won’t Publish When Failing System Cries Out For More Consistency!

http://www.asylumist.com/2017/06/22/the-bia-on-firm-resettlement-2/

“Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.”

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I agree, Jason. As you know from our Asylumist interviews last summer, there was a time when the BIA published more cases. It was during the era of the “Schmidt Board.”

Many of the precedents involved controversial issues of first impression under IIRIRA. There was open dialogue with some separate opinions. Sometimes, the dissent better predicted the future development of the law than the majority opinion. Most were en banc, so every Board Appellate Judge had to take a public vote. And, some of them actually granted relief to the respondent.

But those days are long gone. Today’s Board exists 1) to push cases through the system to final orders of removal on more or less of an assembly line, 2) not to rock the boat, 3) to provide OIL with ways to defend the Government’s “party line” under Chevron, and 4) to preserve the institution and the jobs of the Appellate Judges.

You’ll notice that I didn’t mention anything about due process, fairness, best practices, consistency, law development, informative dialogue, justice, or even practicality. And, Jason, let’s face it. Who would want to publish a decision favorable to a respondent with Jeff “Gonzo Apocalypto” Sessions — a guy who basically never has a kind, humane, or generous word to say about any migrant, legal or not — as your boss?

In a functioning system, an appellate court that stood for fairness, due process, and best practices could be part of the solution. But, our current U.S. Immigration Court system is dysfunctional. And, mostly, the Board is just another part of the problem. Basically, if you don’t stand up for anything or anybody, you stand for nothing.

PWS

06-28-17

9th Circuit Reverses BIA, Says CAL Fleeing From A Police Officer Not A Categorical CIMT! — Ramirez-Contreras v. Sessions — Read My Mini-Essay “Hard Times In The Ivory Tower”

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Here is the summary prepared by the court staff:

“Immigration

The panel granted Ramirez-Contreras’s petition for review of the Board of Immigration Appeals’ decision concluding that his conviction for fleeing from a police officer under California Vehicle Code § 2800.2 is categorically a crime involving moral turpitude that rendered him statutorily ineligible for cancellation of removal.

In holding that Ramirez-Contreras’s conviction is not a crime of moral turpitude, the panel accorded minimal deference to the BIA’s decision due to flaws in its reasoning.

Applying the categorical approach, the panel viewed the least of the acts criminalized under California Vehicle Code § 2800.2, and concluded that an individual can be convicted under subsection (b) for eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” Therefore, the panel held that California Vehicle Code § 2800.2 is not a crime of moral turpitude because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude.

The panel also held that the modified categorical approach does not apply because the elements of California Vehicle Code § 2800.2 are clearly indivisible.”

Before: Mary M. Schroeder, Andre M. Davis,** and Mary H. Murguia, Circuit Judges.

Opinion by Judge Schroeder

** The Honorable Andre M. Davis, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

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HARD TIMES IN THE IVORY TOWER

by Paul Wickham Schmidt

The BIA has been having a rough time lately on its rulings concerning both “aggravated felonies” and “crimes involving moral turpitude.” The BIA appears to take an “expansive” or “inclusive” approach to criminal removal statutes, while most courts, including the Supremes, seem to prefer a narrower approach that assumes the “least possible crime” and ameliorates some of the harshness of the INA’s removal provisions.

In my view, the BIA’s jurisprudence on criminal removal took a “downward turn” after Judge Lory D. Rosenberg was forced off the BIA by then Attorney General John Ashcroft around 2002. Judge Rosenberg’s dissents often set forth a “categorical” and “modified categorical” analysis that eventually proved to be more in line with that used by higher Federal Courts all the way up to the U.S. Supreme Court.

Since the “Ashcroft purge,” the BIA has visibly struggled to get on the same wavelength with the reviewing courts on analyzing criminal removal provisions. At the same time, the BIA’s own precedents have been remarkable for their lack of meaningful dissent and absence of any type of visible judicial dialogue and deliberation. Maybe that’s what happens when you try to build a “captive court” from the “inside out” rather than competitively selecting the very best Appellate Immigration Judges from different backgrounds whose views span the entire “real world” of immigration jurisprudence.

Just another reason why it’s time to get the United States Immigration Courts (including the “Appellate Division” a/k/a/ the BIA) out of the Executive Branch and into an independent judicial structure. No other major court system in America is run the way DOJ/EOIR runs the Immigration Courts. And, that’s not good news for those seeking genuine due process within the immigration system.

PWS

06-09-17

Dean Kevin Johnson Summarizes Today’s SCt Argument In Esquivel-Quintana v. Sessions For SCOTUS Blog — Issue: Sexual Abuse Of A Minor!

http://www.scotusblog.com/2017/02/argument-analysis-justices-divided-meaning-sexual-abuse-minor-removal-purposes/#more-252948/

“The question before the Supreme Court is whether Esquivel-Quintana’s conviction constitutes an “aggravated felony” as “sexual abuse of a minor” under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency’s reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.

. . . . .

In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana’s crime constituted “sexual abuse of a minor” under the immigration laws. The justices’ questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.”

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PWS

02/27/17

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