Chief Justice John Marshall – immigrationcourtside.com

COMPLICITY WATCH: Justice Sonia Sotomayor Calls Out “Men In Black” For Perverting Rules To Advance Trump/Miller White Nationalist Nativist Immigration Agenda!

Mark Joseph Stern
Reporter, Slate

https://slate.com/news-and-politics/2020/02/sotomayor-trump-wealth-test-bias-dissent.html

Mark Joseph Stern reports for Slate:

. . . .

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

Read the full article at the above link.

Here’s a link to Justice Sotomayor’s full dissent in Wolf v. Cook County:

SotomayorPublicChargeDissetn19a905_7m48

Justice Sonia Sotomayor

Here’s a “key quote” from Justice Sotomayor’s dissent:

These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive ap- plication, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge

6 WOLF v. COOK COUNTY SOTOMAYOR, J., dissenting

rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.

Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.

Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timeta- bles and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the govern- ment.” Application 3.) They demand extensive time and resources when the Court’s intervention may well be unnec- essary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of ir- reparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Mur- phy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect.

I respectfully dissent.

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

Of course, the regime’s use of manufactured and clearly bogus “national emergencies” or fake appeals to “national security” is a perversion of both fact and law, as well as a mocking of Constitutional separation of powers. This obscenely transparent legal ruse essentially was invited by the Roberts and his GOP brethren. Roberts somewhat disingenuously claims to be a “student of history.” But, whether he takes responsibility for it or not, he has basically invited Trump & Miller to start a new “Reichstag Fire” almost every week with migrants, asylum seekers, Latinos, and the less affluent as the “designated usual suspects.”

Powerful as her dissent is, Justice Sotomayor actually understates the case against her GOP colleagues. Every racist, White Nationalist, nativist, and/or authoritarian movement in American history has been enabled, advanced, and protected by morally corrupt and intellectually dishonest jurists who have intentionally provided “legal cover” for those official misdeeds. How about “states rights,” “separate but equal,” “plenary power,” and a host of other now discredited legal doctrines used to justify everything from slavery to denying voting, and other Constitutional rights including life itself to African Americans? They were all used to “cover” for actions that might more properly have been considered “crimes against humanity.”

Who knows what legal blather Roberts and his four fellow rightist toadies will come up with to further promote the destruction of humanity and the disintegration of American democracy at the hands of Trump, Miller, Barr, Putin, and the rest of the gang?

But, courageous “outings” like those by Justice Sotomayor will help insure that history will be able to trace the bloody path of needless deaths, ruined lives, wasted human potential, official hate mongering, and unspeakable human misery they are unleashing directly to their doors and hold them accountable in a way that our current system has disgracefully failed to do.

Trump was right about at least one thing: There are indeed “GOP Justices” on the Supremes wholly owned by him and his party. They consistently put GOP rightist ideology and and authoritarianism above the Constitution, human rights, the rule of law, intellectual honesty, and simple human decency. Other than that, they’re a “great bunch of guys!”

Due Process Forever; Complicit Courts Never!

PWS

02-22-20

COMPLICITY HAS COSTS: Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?”

https://www.washingtonpost.com/nation/2020/02/18/judges-meeting-trump/

Fred Barbash
Legal Reporter
Washington Post

Fred Barbash reports for the WashPost:

By

Fred Barbash

Feb. 18, 2020 at 3:16 a.m. EST

The head of the Federal Judges Association is taking the extraordinary step of calling an emergency meeting to address the intervention in politically sensitive cases by President Trump and Attorney General William P. Barr.

U.S. District Judge Cynthia M. Rufe, the Philadelphia-based judge who heads the voluntary association of around 1,100 life-term federal judges, told USA Today that the issue “could not wait.” The association, founded in 1982, ordinarily concerns itself with matters of judicial compensation and legislation affecting the federal judiciary.

Republicans defend Barr as Klobuchar looks forward to testimony

Lawmakers and White House counselor Kellyanne Conway commented Feb. 16 on President Trump’s tweets and the conduct of Attorney General William P. Barr. (The Washington Post)

On Sunday, more than 1,100 former Justice Department employees released a public letter calling on Barr to resign over the Stone case.

More than 1,100 ex-Justice Department officials call for Barr’s resignation

A search of news articles since the group’s creation revealed nothing like a meeting to deal with the conduct of a president or attorney general.

Rufe, appointed to the bench by President George W. Bush, could not be reached for comment late Monday.

The action follows a week of turmoil that included the president tweeting his outrage over the length of sentence recommended by career federal prosecutors for his friend Roger Stone and the decision by Barr to withdraw that recommendation.

In between, Trump singled out the judge in the Stone case, Amy Berman Jackson of the U.S. District Court in Washington, for personal attacks, accusing her of bias and spreading a falsehood about her record.

“There are plenty of issues that we are concerned about,” Rufe said to USA Today. “We’ll talk all this through.”

Trump began disparaging federal judges who have ruled against his interests before he took office, starting with U.S. District Judge Gonzalo P. Curiel. After Curiel ruled against Trump in 2016 in a pair of lawsuits detailing predatory marketing practices at Trump University in San Diego, Trump described him as “a hater of Donald Trump,” adding that he believed the Indiana-born judge was “Mexican.”

Trump keeps lashing out at judges

President Trump has a history of denouncing judges over rulings that have negatively affected him personally as well as his administration’s policies. (Drea Cornejo/The Washington Post)

Faced with more than 100 adverse rulings in the federal courts, Trump has continued verbal attacks on judges.

Rufe’s comments gave no hint of what the association could or would do in response.

Some individual judges have already spoken out critically about Trump’s attacks generally, among them U.S. District Judge Paul L. Friedman, a colleague of Jackson’s in Washington, and most recently, the chief judge of the court in Washington, Beryl A. Howell.

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

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

Will Trump & Barr eventually separate Article III Judges’ families or send them to danger zones in Mexico or the Northern Triangle to “deter” rulings against the regime? Will Mark Morgan and Chad Wolf then declare “victory?” Will their families be scattered to various parts of the “New American Gulag” with no plans to reunite them? Will they be put on trial for their lives without access to lawyers? Are there costs for failing to take a “united stand” for the rule of law, Constitutional Due Process, human rights, and the human dignity of the most vulnerable among us?

Why does it take the case of a lifetime sleaze-ball like Roger Stone to get the “life-tenured ones” to “wake up” to the attacks on humanity and the rule of law going on under noses for the past three years?

Complicity has costs!

Due Process Forever; Complicit Courts Never!

PWS

02-18-20

TESS HELLGREN @ INNOVATION LAW LAB: When It Comes To The Captive BIA & Weaponized Immigration Courts, The Article IIIs Need To Put Away The Rubber Stamp & Restore Integrity To The Law! — “Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever.”

http://innovationlawlab.org/blog/the-role-of-judges-to-say-what-the-law-is-judicial-oversight-of-immigration-adjudication/

THE ROLE OF JUDGES TO “SAY WHAT THE LAW IS”: JUDICIAL OVERSIGHT OF IMMIGRATION ADJUDICATION

By Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

January 31, 2020

Since the beginning of the Trump Administration, the immigration court system has been used as a tool to further the executive branch’s anti-immigrant agenda. The Attorney General and other executive officials have enabled widespread due process violations and skyrocketing case backlogs while imposing case quotas and docketing rules that prevent judges from serving as impartial adjudicators.[1]

Last week, the Seventh Circuit highlighted a new abuse of power: the refusal of executive officials in the Board of Immigration Appeals (BIA) to follow a direct order from a federal court.

The BIA is the administrative body responsible for reviewing decisions that are appealed from sixty-eight immigration courts across the country. Like these immigration courts, the BIA is part of the Executive Office for Immigration Review (EOIR) – the immigration court system, located in the executive branch, that is ultimately overseen by the Attorney General of the United States. Despite the serious flaws inherent in the design of this system, BIA decisions may at least be appealed up to the appropriate federal circuit court, providing a crucial layer of independent judicial review in individual cases.[2]

In the case of Baez-Sanchez v. Barr, the Seventh Circuit had previously held that the immigration laws unambiguously grant immigration judges the power to waive a noncitizen’s inadmissibility to the United States, overruling the BIA’s prior decision to the contrary.[3] On remand, the BIA “flatly refused to implement” the court’s direct order.[4] Writing that the BIA’s decision “beggars belief,” the Seventh Circuit stated that

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that [the Respondent] has not asked us to hold them in contempt, with all the consequences that possibility entails.[5]

This language is an extraordinary rebuke: it is very rare for a circuit court to issue an implicit threat to hold members of an administrative agency in contempt for directly disregarding a court order. The Seventh Circuit was clear that the BIA was mistaken if it thought that “faced with a conflict between our views and those of the Attorney General it should follow the latter.”[6] Affirming foundational separation of powers principles, the Seventh Circuit admonished that

[I]t should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government . . . Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.[7]

The Seventh Circuit’s decision also noted that the Attorney General had submitted a brief asking the court to give the BIA another opportunity to issue “an authoritative decision” on this issue, arguing that such a decision could be entitled to judicial deference.[8] The court aptly responded that this “request is bizarre,” as the court had already held that the applicable regulation was unambiguous – and an agency “cannot rewrite an unambiguous [law] through the guise of interpretation.”[9] As the Supreme Court made clear in Kisor v. Wilkie, “if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense.”[10]

Notably, even if the Seventh Circuit had found the laws in question to be ambiguous, the Attorney General and members of the BIA do not have free reign to impose any interpretation they choose. It is true that federal courts must defer to the reasoned decisions of administrative agencies when Congress has left the agency’s discretion to interpret an ambiguous provision of law, under the doctrine of Chevron deference.[11] But this deference is not boundless. As the Supreme Court made clear in Chevron, courts should defer to agencies’ interpretation of ambiguous statutes when the agency interpretation is “a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute.”[12] The agency’s interpretation must thus still fall “within the bounds of reasonable interpretation.”[13]

This standard, and the Seventh Circuit’s reprimand, is especially important as the Attorney General attempts to aggressively expand his control of immigration court adjudication. Under the Trump Administration, the Attorneys General have issued a number of “certified” decisions that attempt to restrict eligibility for asylum based on factors such as domestic violence, gang violence, or past persecution due to family membership.[14] In these decisions, which upend years of established immigration precedent, the Attorney General has pointedly asserted his authority to construe the terms of the Immigration and Nationality Act and implied that federal courts must fall in line with his interpretations.[15]

Yet the Attorney General’s reasoning holds only if his interpretations are actually entitled to judicial deference: if the laws in question are ambiguous and the federal courts find his interpretations reasonable.[16] And as the Supreme Court has admonished, “let there be no mistake: That is a requirement an agency can fail.”[17] Indeed, in addressing the application of the Attorney General’s certified decision in Matter of A-B-, at least one federal court has already held that a “general rule against domestic violence and gang-related claims during a credible fear determination is arbitrary and capricious and violates the immigration laws.”[18]

Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever. As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[19]

[1] See generally Innovation Law Lab and Southern Poverty Law Center, The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, 14–15 (June 2019), https://innovationlawlab.org/reports/the-attorney-generals-judges/; Complaint, Las Americas v. Trump, No. 3:19-cv-02051-SB (D. Or. Dec. 18, 2019), https://innovationlawlab.org/wp-content/uploads/2019/12/ECF-1-Las-Americas-v.-Trump-No.-19-cv-02051-SB-D.-Or..pdf.

[2] See Immigration and Nationality Act § 242; 8 U.S.C. § 1252.

[3] Baez-Sanchez v. Sessions, 872 F.3d 854, 856 (7th Cir. 2017); Baez-Sanchez v. Barr, No. 19-1642, slip op. at 2–3 (7th Cir. Jan. 23, 2020).

[4] Baez-Sanchez, slip op. at 3.

[5] Id. at 3–4.

[6] Id. at 4.

[7] Id.

[8] Id. at 4–5.

[9] Id. at 5.

[10] Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019).

[11] Chevron v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

[12] Id. at 844–45; see also 5 U.S.C. § 706(2) (a reviewing court shall set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

[13] See Kisor, 139 S.Ct. at 2416, quoting Arlington v. FCC, 569 U.S. 290, 296 (2013).

[14] See Matter of A-B-, 27 I&N Dec. 316 (2018); Matter of L-E-A-, 27 I&N Dec. 581 (2019). Note inconsistencies

[15] See Matter of A-B-, 27 I&N at 326–27; Matter of L-E-A-, 27 I&N at 591–92.

[16] See Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (allowing for agency interpretation to override judicial interpretation in certain circumstances, when the agency interpretation is “otherwise entitled to Chevron deference”).

[17] See Kisor, 139 S.Ct. at 2416.

[18] Grace v. Whitaker, 344 F. Supp. 3d 96, 127 (D.D.C. 2018).

[19] See Marbury v. Madison, 5 U.S. 137, 177 (1803).

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

Well said, Tess!

Thanks for being such a NDPA stalwart!

Due Process Forever!

PWS

02-01-20

NO DEFERENCE DUE! – 6th CIR. SLAMS TWO BIA PRECEDENTS – MATTER OF KEELEY, 27 I&N DEC. 27 I&N DEC. 146 (BIA 2017) & MATTER OF JASSO ARANGURE, 27 I&N DEC. 178 (BIA 2017) BITE THE DUST! — Time To Put An End To Inappropriate “Chevron Deference” For “Captive” BIA!

6th-Keeley18a0270p-06

Keeley v. Whitaker, 6th Cir., 12-17-18, Published

PANEL: GRIFFIN and DONALD, Circuit Judges; BERTELSMAN, District Judge*

*The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of Kentucky, sitting by designation.

OPINION BY: JUDGE BERNICE BOUIE DONALD

KEYQUOTE:

This case requires us to use the tools of statutory interpretation to determine whether a conviction for rape in Ohio is an aggravated felony under the Immigration and Nationality Act (“INA”). The Fifth Circuit and the Board of Immigration Appeals (“BIA”) previously considered this question and answered it in the negative. In the case before us, though, the BIA reversed course in a published decision and found that such a conviction is an aggravated felony under the INA. On review of all the relevant materials, we disagree with the BIA. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the INA cannot. Therefore, the Ohio conviction does not categorically fit within the federal definition, and the petitioner’sconviction is not an aggravated felony. Accordingly, we REVERSE.

. . . .

In its opinion, the BIA ignored the most important guiding factor to statutory interpretation—the language of the statute—which shows that Congress did not consider rape and sexual abuse to be coextensive. When a court discerns the intent of Congress, “[o]ur analysis begins with the language of the statute.” Esquivel-Quintana, 137 S. Ct. at 1569 (emphasis added) (quoting Leocal v. Ashcroft, 543 U.S. 1, 8 (2004)). When defining what crimes constituted aggravated felonies in the INA, Congress included “rape” and “sexual abuse of a minor” separately. § 101(a)(43)(A). The only conclusion we can draw from this drafting is that Congress intended for the terms to describe different aggravated felonies.

The BIA’s approach is impermissible because it would strip meaning from the statute’s words. “Under accepted canons of statutory interpretation, we must interpret statutes as a whole,giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Menuskin v. Williams, 145 F.3d 755, 768 (6th Cir. 1998) (quoting Lake Cumberland Trust, Inc. v. U.S. E.P.A., 954 F.2d 1218, 1222 (6th Cir. 1992)). To accept the BIA’s position that Congress intended for rape and sexual abuse to be synonymous would render meaningless Congress’ decision to utilize the two different terms—rape and sexual abuse—to describe two different aggravated felonies.6 Congress clearly intended to penalize a more expansive set of sex crimes

No. 17-4210 Keeley v. Whitaker Page 7

committed against minors than against adults; and to effectuate that intent, Congress used the term “rape” as to adults and “sexual abuse” as to minors. The BIA ignored the language of the statute.7 Its holding cannot stand.

The primary error the BIA committed was to place the states’ treatment of the crime above the language of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (holding that we must discern the intent of Congress when interpreting a federal statute).8 Even accepting as true that many of the states treated rape and sexual abuse as “interchangeable” in 1996, we cannot impute such an understanding to Congress. The language of the INA prohibits us from doing so.

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

Gee, the Fifth Circuit actually told the BIA the correct answer! And, initially, the BIA got it right!

But then, perhaps in an effort to ingratiate themselves with “Gonzo Apocalypto” Sessions, their “new boss,” the BIA screwed it up by trying to expand the reach of the removal provision so that more folks could be removed in violation of law. Sounds like just the kind of scofflaw thing Ol’ Gonzo encouraged and dreamed about. Looks to me like “job security” is overruling “justice” at “Justice!”

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

172209.P Jasso-6th Cir18a0272p-06

Jasso Arangure v. Whitaker, 6th Cir., 12-18-18, Published

PANEL: THAPAR, BUSH, and NALBANDIAN, Circuit Judges

OPINION BY: JUDGE THAPAR

KEY QUOTE:

Courts have always had an “emphatic[]” duty “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). But all too often, courts abdicate this duty by rushing to find statutes ambiguous, rather than performing a full interpretive analysis. When dealing with agencies, this abdication by ambiguity is even more tempting—and even more problematic. Because, under Chevron, ambiguity means courts get to outsource their “emphatic” duty by deferring to an agency’s interpretation. But even Chevron itself reminds courts that they must do their job before applying deference: they must first exhaust the “traditional tools” of statutory interpretation and “reject administrative constructions” that are contrary to the clear meaning of the statute. Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). First and foremost, this means courts must analyze the statutory text. But when the text standing alone does not supply an answer, courts must consider canons of interpretation. Here, a canon makes the statute’s meaning clear. Thus, we reject the agency’s contrary interpretation.

. . . .

In this case, the Chevron analysis begins and ends with step one. The common-law presumption of res judicata makes the INA unambiguous. Res judicata doctrine applies in removal proceedings.

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

“Preaching to the choir” here on “Chevron deference.” As my former students in RLP and ILP at Georgetown might remember, I referred to Chevron as “judicial task avoidance,” which is exactly what it is. It’s a gross violation of Marbury. Effectively, “TJ” dancing on the grave of John Marshall!

Chevron deference is particularly inappropriate in the case of the BIA, which these days functions as an enforcement appendage of the Attorney General (who, without authorization, has actually “re-assumed” many of the civil immigration enforcement functions of DHS). And, both Sessions and Whitaker have shown that if the BIA dares to render any semblance of a reasonable interpretation that might actually help a respondent in Removal Proceedings in any way it will be swiftly and mindlessly reversed.

Neither Sessions nor Whitaker had any chance of being confirmed as an Article III Judge. Indeed, Sessions was emphatically rejected for such a position by his own party because of his record of racially biased views (which he inflicted on the most vulnerable migrants during his toxic tenure as AG).

They have no business serving in a “quasi-judicial” capacity in any immigration proceeding. And, the Article III Courts have no business giving the BIA “deference” reserved for an impartial panel of subject matter experts. By no stretch of the imagination does that describe today’s “captive” BIA (which, incidentally, hasn’t had an “outside Government” appointment this century –even before Sessions, its jurisprudence had become very lopsidedly in favor of the DHS).

PWS

12-22-18

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

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

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

Category: Chief Justice John Marshall

COMPLICITY WATCH: Justice Sonia Sotomayor Calls Out “Men In Black” For Perverting Rules To Advance Trump/Miller White Nationalist Nativist Immigration Agenda!

Due Process Forever; Complicit Courts Never!

Due Process Forever; Complicit Courts Never!

THE ROLE OF JUDGES TO “SAY WHAT THE LAW IS”: JUDICIAL OVERSIGHT OF IMMIGRATION ADJUDICATION

By Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

Due Process Forever!

NO DEFERENCE DUE! – 6th CIR. SLAMS TWO BIA PRECEDENTS – MATTER OF KEELEY, 27 I&N DEC. 27 I&N DEC. 146 (BIA 2017) & MATTER OF JASSO ARANGURE, 27 I&N DEC. 178 (BIA 2017) BITE THE DUST! — Time To Put An End To Inappropriate “Chevron Deference” For “Captive” BIA!

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.

Due Process Forever; Complicit Courts Never!

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Due Process Forever; Complicit Courts Never!

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THE ROLE OF JUDGES TO “SAY WHAT THE LAW IS”: JUDICIAL OVERSIGHT OF IMMIGRATION ADJUDICATION

By Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

Due Process Forever!

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