🎁 CATHERINE RAMPELL @ WASHPOST “CHANNELS” LOPEZ & SCHMIDT — THE MIGRANT “SURGE” IS A GIFT TO AMERICA’S ECONOMY & TO DEMS: Will Latter Be Able To “Quit The Miller Lite” & Get Back “On Message?” — Tuesday’s Dem Victory In NY Could Be An Opportunity ONLY IF Dems Ignore The Mainstream Media & Showcase Sane, Humane, Solutions! — How About “Judges Without Borders?” — The Disgusting Immorality & Irresponsibility Of The Media!

https://www.washingtonpost.com/opinions/2024/02/13/immigration-economy-jobs-cbo-report/

Catherine writes in WashPost:

As the economy has improved and consumers have begun recognizing that improvement, Republicans have pivoted to attacking President Biden on a different policy weakness: immigration. After all, virtually everyone — Democrats included — seems to agree the issue is a serious problem.

But what if that premise is wrong? Voters and political strategists have treated our country’s ability to draw immigrants from around the world as a curse; it could be a blessing, if only we could get out of our own way.

Consider a few numbers: Last week, the nonpartisan Congressional Budget Office released updated 10-year economic and budget forecasts. The numbers look significantly better than they did a year earlier, and immigration is a key reason.

The CBO has now factored in a previously unexpected surge in immigration that began in 2022, which the agency assumes will persist for several years. These immigrants are more likely to work than their native-born counterparts, largely because immigrants skew younger. This infusion of working-age immigrants will more than offset the expected retirement of the aging, native-born population.

. . . .

Instead, GOP lawmakers scaremonger about the foreign-born, characterizing immigration as an invasion. As Rep. Mike Collins (R-Ga.) dog-whistled last week, “Import the 3rd world. Become the 3rd world.”

Alas, the faction working to turn the United States into a developing country is not immigrants but Collins’s own party. It’s Republicans, after all, who have supported the degradation of the rule of law; the return of a would-be dictator; the gutting of public education and health-care systems; the rollback of clean-water standards and other environmental rules; and the relaxation of child labor laws (in lieu of letting immigrants fill open jobs, of course).

America has historically drawn hard-working immigrants from around the world precisely because its people and economy have more often been shielded from such “Third World”-like instability, which Republican politicians now invite in.

Ronald Reagan, the erstwhile leader of the conservative movement, often spoke poignantly of this phenomenon. In one of his last speeches as president, he described the riches that draw immigrants to our shores and how immigrants in turn redouble those riches:

Thanks to each wave of new arrivals to this land of opportunity, we’re a nation forever young, forever bursting with energy and new ideas, and always on the cutting edge, always leading the world to the next frontier. This quality is vital to our future as a nation. If we ever closed the door to new Americans, our leadership in the world would soon be lost.

— https://www.reaganlibrary.gov/archives/speech/remarks-presentation-ceremony-presidential-medal-freedom-5

Reagan’s words reflected the poetry of immigration. Since then, the prose — as we’ve seen in the economic numbers, among other metrics — has been pretty compelling, too.

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

Read Catherine’s full article at the link. Compare it with the observations that Beatriz Lopez and I recently made in Substack and Courtside about Dem short-sightedness on immigration, particularly in light of all the “good stories” about immigrants that Dems are afraid to tell out here. See https://immigrationcourtside.com/2024/02/13/🤯dems-miller-lite-strategy-🤮-could-spell-disaster-☠%EF%B8%8F-in-november-time-to-regrow-spines-put-fight/.

Already the media are “at it again,” most attributing Democrat Tom Souzzi’s easy win over his GOP opponent for the House seat vacated by George Santos to his “move right” on immigration. But, as Catherine suggests above, “what if that premise is wrong?”

There is certainly support for a more nuanced view, both anecdotally and in polls. “Suozzi, [a voter] said, would ‘protect us but also be fair to those who are seeking asylum.’” https://www.washingtonpost.com/elections/2024/02/13/new-york-district-3-special-election-george-santos/. Sadly, and outrageously, the so-called Senate “compromise” border bill that Souzzi touted and which has become the “darling” of the tone-deaf mainstream media does neither. Not even close!

Yet, supposedly responsible journalists are falling all over themselves touting the benefits to Dems of a horrible “Miller-Lite” bill that essentially would have destroyed the right to asylum while turning the border over to cartels and smugglers to exploit some of the world’s most vulnerable who are victims of our own failings. Today’s wrong-headed WashPost editorial is a particularly egregious piece of such media sophistry. https://www.washingtonpost.com/opinions/2024/02/14/immigration-border-suozzi-mayorkas-special/.

We don’t have to “guess” at the human consequences of the nativist-inspired “bipartisan” non-solution at the border being trumpeted and glorified by Post editorialists safely ensconced in their “ivory tower!” We know! The results of recent half-baked attempts to close the border and eliminate asylum seekers are clear and well documented: death and human carnage inflicted on legal asylum seekers! See, e.g., https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjq1pmw_qWEAxUwL1kFHUbSDMIQFnoECBAQAw&url=https://www.americanimmigrationcouncil.org/research/migrant-protection-protocols#:~:text=According%20to%20Human%20Rights%20First,individuals%20sent%20back%20under%20MPP.&usg=AOvVaw2ehZRBR_jXYoI41NZZN2DK&opi=8997844.

We also know that abuses of forced migrants at our borders fall disproportionately on the who are Black, Hispanic, or other people of color. See, e.g., https://humanrightsfirst.org/library/card-us-discrimination-against-black-migrants-refugees-and-asylum-seekers-at-the-border-and-beyond/ .

So, here’s a more intellectually honest “rewrite” of today’s lead editorial:

POST EDITORIAL BOARD: Death, Murder, Rape, Torture, Assault, Robbery, Extortion, Kidnapping of Hispanics, Blacks, Other Forced Migrants A Small Price To Pay For Bipartisan Deal To Outsource Migration To Gangs, Cartels, and Traffickers!

We Must Not Only “Turn Away The St. Louis,” But Torpedo It So Every Man, Woman, & Child Goes To The Bottom Where They Will Be Effectively Deterred From Ever Again Invoking Our Laws & Moral Obligations!

Nowhere, and I repeat nowhere, are the voices of those with decades of actual hands on experience working with migrants at the border, and the voices of those migrants themselves, being heard and heeded in this “non-debate” that resulted not in a “compromise” but in a “human rights giveaway.” What gives us the right to arrogantly and immorally give away rights and human lives that are NOT ours in the first place as if they were “table favors at a political fundraiser?“

As Beatriz so pointedly said:

Hanging above our heads like a Florida cockroach threatening to fly into our faces was the fact that the Biden administration, Majority Leader Chuck Schumer, Senator Chris Murphy, and Democrats who voted for the bill had officially moved the goalpost on immigration.

Thanks to the moral vapidity of Dem politicos and the Administration the “game” for the lives, rights, future, and human dignity of asylum seekers is now being “played” between the “Good Guys’”goal line and their ten yard line! We are being offered a “choice” between “cruel and stupid” and “crueler and dumber!” Certainly, the Dems and our nation could and should do better!

Supporting fairness, orderly processing, and actions that protect asylum and the community would be a far more prudent choice for Dems than the virulent “death to asylum craze” (the unstated part of which is that it also means “death to asylum seekers”) that currently seems to be “in vogue” with both parties and mindlessly hyped by the media.

It’s quite possible that Souzzi won not because of his extreme position on asylum, but because his position was “less extreme” that that of his GOP opponent and her openly xenophobic party. This conclusion is actually supported by polls that show that while most voters understandably want “order at the border,” they also want to protect the right to claim asylum and a fair process for doing so. See, e.g., https://wp.me/p8eeJm-9hU.

There is opportunity here for Dems to change minds and create a stronger coalition for asylum seekers and other immigrants. NGO experts like Beatriz Lopez need to partner with Congressional Dems who understand asylum and the border (like Rep. Hillary Scholten (D-MI) and Rep. Joaquin Castro (D-TX)) to reach out and meet with Rep. Souzzi and others like him to explain practical solutions and useful changes at the border that would create order while maintaining and enhancing fair and timely asylum processing.

Among these is the low-budget, common sense proposal advanced by retired Wisconsin Judge Thomas Lister and me for “Judges Without Borders,” essentially “leveraging” voluntary service by trained, retired State and Federal Judges to work with groups informing and advising individuals before they make the dangerous journey to our Southern Border. Budget-friendly humane solutions that can reduce the pressure on the border should be a bipartisan winner. Read more about our proposal here! See https://immigrationcourtside.com/2023/12/13/%F0%9F%91%A9%F0%9F%8F%BD%E2%9A%96%EF%B8%8F%F0%9F%91%A8%F0%9F%8F%BB%E2%9A%96%EF%B8%8F-%E2%9A%96%EF%B8%8F%F0%9F%97%BDjudges-without-borders-an-innovative-op/

Beyond that, advocates must explain and model how migrants themselves can help resolve the problems facing Rep. Souzzi’s district and improve the quality of life for all. They must show how migrants are “part of the solution,” perhaps, for example, by establishing public-private partnerships that would involve migrant communities in constructing high-quality, attractive affordable housing that would help the entire community. Working on various civic improvement projects might also be a mutually beneficial option.

Advocates, NGOs, and political supporters of migrants must do more than just point to graphs and cite statistics about the long-term economic and societal benefits of immigration. They must actually model and create practical joint projects and expand opportunities for the benefit of migrants and the communities to which they have been relocated.

Problem-solving needs to be brought into the “here and now” rather than just being presented to U.S. communities as a vague promise of future benefits. My experience is that most people react to what’s before them today rather than than relying on a constructed view of tomorrow, now matter how attractive and statistically supported that future vision might be.

In addition to the misguided “Miller Lite nonsense” from the editorial board and, disappointingly, even the usually responsible and insightful Karen Tumulty, today’s WashPost contained useful observations from Eduardo Porter about the need to get migrants to places in the U.S. where they, their job skills, and their work ethic would be welcomed, appreciated, and useful.

But, both the Biden Administration and Congress have shamefully failed to convert this “low-hanging fruit” into reality. Even worse, that has allowed White Nationalist demagogues like Abbott and DeSantis to waste and divert millions in public funds to make the situation worse and to convert those who want to help America succeed and prosper into hapless “political footballs” being tossed back and forth between GOP nativists and wimpy Dem politicos who long-ago lost their moral bearings. Although NGOs and advocates are weary and overburdened, if they don’t take the initiative to make this happen, on at least some scale, the opportunity will be lost and the nativist myth-makers will prevail.

Only by modeling actual results in real time will we be able to demonstrate the fallacy and counterproductivity of the GOP’s nativist “burden myths.” There’s no time like the present to start!

🇺🇸 Due Process Forever!

PWS

02-15-24

🆘⚖️MR. NEGUSIE’S 17-YR ODYSSEY INTO JUDICIAL NEVER-NEVER LAND CONTINUES — GARLAND’S CERTIFICATION OF MATTER OF NEGUSIE, 28 I&N DEC. 399 (A.G. 2021) — A Microcosm Of All That’s Wrong With Our Immigration Court System — 17 Years, 4 Administrations, 5 Different Tribunals, 0 Final Resolution! — Calling Charles Dickens!

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTEwMTIuNDcyNTU4OTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9lb2lyL3BhZ2UvZmlsZS8xNDQxMjYxL2Rvd25sb2FkIn0.5W9gUw8pz8DPzsg7kAN8OnR6-Fn9dKgiW5oNm1UqGzM/s/842922301/br/113790680583-l

Cite as 28 I&N Dec. 399 (A.G. 2021) Interim Decision #4029

Matter of NEGUSIE, Respondent

Decided by Attorney General October 12, 2021

U.S. Department of Justice Office of the Attorney General

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).

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

This terse decision conceals a total, disgraceful mess in our justice system!

Mr. Negusie, the respondent in this case, filed his asylum application before an Immigration Judge in 2004 — 17 years ago!
In 2005, the IJ denied his application because of the so-called “persecutor bar,” but “deferred” his removal to Eritrea under the Convention Against Torture(“CAT”).
The BIA affirmed the IJ’s decision.
In 2007, the 5th Circuit affirmed the BIA.
In 2009, the Supreme Court reversed the BIA, and remanded the case to the BIA under their “Chevron doctrine” of “judicial task avoidance,” Negusie v. Holder, 555 U.S. 511 (2009].
- At that time, in separate opinions, five Justices expressed rather definitive views about the substantive legal issue.
- Justices Thomas, Scalia, and Alito all clearly believed that there should be no “duress exception” to the persecutor bar.
- Justices Stevens and Breyer obviously thought that there was a “duress exception.”
- The other four, Chief Justice Roberts, Justices Kennedy, Souter, & Ginsburg, had obviously studied matter, but rather than resolving the issue, chose to “punt” it back to the BIA for their supposed “expert interpretation” — an unusual “vote of confidence” in an administrative body they had just found to have misinterpreted their prior decisions.
“The Interregnum:” For the next nine years, during which both Administrations and BIA membership changed several times, the BIA “ruminated” on the task assigned them by the Supremes. Finally, in 2018, the BIA issued a precedent decision finding a limited “duress defense.” Matter of Negusie, 27 I&N Dec. 347 (BIA 2018). Nevertheless, the BIA found that Negusie didn’t qualify for that limited defense. So, Negusie lost! But, that was hardly the end of the matter within the convoluted world of the DOJ!
Despite the Government’s prevailing in Negusie’s case, four months later, AG Sessions “certified” that decision to himself.
Two years later, in 2020, another AG, Billy Barr, who had succeeded Sessions, reversed the BIA in a precedent, finding that there was no “duress exception,” however limited, to the “persecutor bar.” Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020). Mr.Negusie lost once again, but this time on a different rationale than employed by the BIA!
The case was returned to the BIA for “background checks,” since Mr. Negusie’s removal had been indefinitely “deferred” under the Convention Against Torture (“CAT”). After Mr.Negusie’s background “cleared,” the BIA apparently entered a final order of removal to Eritrea, but “deferred” execution of that order under CAT.
Thereafter, on April 15, 2021, Mr. Negusie exercised his right to seek review in the 5th Circuit for the second time. https://dockets.justia.com/docket/circuit-courts/ca5/21-60314
But, before that review was complete, AG Garland “certified” the last BIA decision (actually Barr’s 2020 precedent) for review, thus “staying” its effect.
Summary: one IJ decision; three trips to the BIA; two trips to the Fifth Circuit; three AG decisions; one trip to the Supremes = no decision on a 2004 application!
In other words, five different tribunals have had this case before them at least nine times over 17 years without finally resolving the issue!
In the meantime, I can tell you from past experience that this issue arises on a regular basis before Immigration Judges. They, in turn, must resolve it as best they can without definitive guidance from higher judicial authorities, sometimes relying on “precedents” that later are vacated or invalidated.
The solution: How about a BIA made up of real judges: true nationally respected experts and “practical scholars” in immigration, human rights, and due process who will provide timely, legally correct guidance at the initial appeal level?
And, if they do happen to get it wrong, how about Supremes that decide the legal issues coming before them, as they are paid to do, rather than aimlessly “orbiting” legal questions back to the lower tribunals that got them wrong in the first place under the highly problematic “Chevron doctrine of high-level judicial task avoidance?”
Also, in the event such reforms were made, how about Attorneys General, who traditionally have particular expertise in neither immigration nor human rights, keeping their “fingers out of the pie” and letting the real experts do the work? (In this respect, while AG Sessions had a long, disgraceful political history of advancing far right, xenophobic, racist, misogynistic tropes, such that his nomination to become a Federal Judge was rejected by his own party, no recognized immigration/human rights expert would classify Sessions as having either legal expertise in the area or proper qualifications to serve in any judicial capacity including a “quasi-judicial” one, particularly in areas where he had previously and consistently shown extreme bias and intellectual dishonesty in his public statements and actions. Nor did AG Barr have any legitimate expertise that would qualify him to participate in quasi-judicial capacity in immigration and human rights cases. While, ordinarily, a Federal Circuit Judge with long service would acquire some immigration experience and perhaps develop expertise, Judge Garland sat on the DC Circuit, which did not regularly review Immigration Court cases, because there is no Immigration Court sitting in D.C.)
One might also ask why the Supremes would remand to a purportedly “expert agency” for statutory interpretation, only to have the process hijacked by politicos?
Finally, multi-raspberries to Congress who let this disgraceful abuse of both taxpayer resources and our justice system go on, in plain sight, for decades without corrective action. America needs an independent Article I Immigration Court, with judges selected on a merit basis, NOW!
Where’s Charles Dickens when we need him? See, e.g., Jarndyce v. Jarndyce.

🇺🇸Due Process Forever!

PWS

10-15-21

⚖️🗽NDPA “PRACTICAL SCHOLARS” CORNER: Professors Elizabeth Keyes & Kate Evans On How To Combat “Billy The Bigot’s Bogus Law” Masquerading As “Legal Analysis” In Matter of Negusie! — How To Apply “Extreme Legal Duress” To Billy’s Intentional Misconstruction Of The Duress Defense!

All,

In the hopes this will be helpful to any of you who are dealing with Negusie issues, I wanted to share my forthcoming article on Duress in Immigration Law, which evolved from my own litigation in this arena. As we challenge this new AG decision (for however long it lasts!), I highly, highly recommend Kate Evans’s Drawing Lines Among the Persecuted, as well.

I am so looking forward to critiquing the AG’s decision thanks to the scholarship Margaret Taylor and Maureen Sweeney have done around deference in the context of AG certification. This community is unendingly helpful!

Liz

Elizabeth Keyes

Associate Professor, Director of the Immigrant Rights Clinic

University of Baltimore School of Law

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

Thanks for sharing, Liz & Kate!

Soon, Billy will be peddling his bias, bigotry, and balderdash in Breitbart News or the National Enquirer where it deservedly will get little notice outside the “Twilight Zone” where Billy and his buddies operate! (Sorry, Billy, but you might have fallen below the “Fox News Threshold!”)

Folks like Liz and Kate are leading intellects with experience and credentials earned by working in the trenches at the “retail levels” of our now-cratering justice system! They would solve problems, “get this system working” the way it should, and make equal justice for all a reality!

I hope that the Biden-Harris Administration will give them, and others like them, many women and minorities, a chance to do just that when it comes to filling judicial and public policy positions! We need to get the immense brain power, humanity, energy, and positive leadership currently available in the private, NGO, and clinical academic sectors into public policy positions where they can achieve “maximum common good” for all of us!

Due Process Forever!

PWS

11-09-17

AFTER 16 YEARS OF LITIGATION, BARR REVERSES BIA, STICKS IT TO FORMER CHILD SOLDIER SUBJECTED TO DURESS! — Matter of NEGUSIE, 28 I&N Dec. 120 (A.G. 2020)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/a-g-barr-on-asylum-persecution-duress-coercion-matter-of-negusie

Dan Kowalski reports from LexisNexis Immigration Community:

A.G. Barr on Asylum, Persecution, Duress, Coercion: Matter of Negusie

Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020)

(1) The bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress.

(2) The Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.

“I vacate the Board’s June 28, 2018 decision. The Board’s decision did not adopt the best interpretation of the persecutor bar viewed in light of its text, context, and history, as well as of longstanding Board precedent and policies of the Department of Justice. In addition, the decision did not appropriately weigh relevant diplomatic considerations, and it introduced collateral consequences that would be detrimental to the administration of immigration law. The Board’s decision also placed an initial burden on the Department of Homeland Security (“DHS”) to show evidence indicating the applicant assisted or otherwise participated in persecution, which is contrary to the plain language of the governing regulations. Because the Board incorrectly recognized a duress exception to the persecutor bar, and incorrectly placed an initial burden on DHS to show evidence the persecutor bar applies, I overrule those determinations and any other Board precedent to the extent it is inconsistent with this opinion. I vacate the Board’s decision and remand this matter to the Board with instructions to place the case on hold pursuant to 8 C.F.R. § 1003.1(d)(6)(ii)(B) pending the completion or updating of all identity, law enforcement, or security investigations or examinations. Once those investigations or examinations are complete, the Board should enter an appropriate order.”

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

Fairly predictable given the regime and a system that lets a political official interfere in the quasi-judicial decision-making process in violation of due process and fundamental fairness! Remarkably, Barr injects “diplomatic considerations” into what is supposed to be due process, impartial adjudication system! He also shifts the burden of proof to the respondent, rather than the DHS where the BIA had placed it.

This case was remanded by the U.S. Supreme Court after the BIA got it wrong more than a decade ago. If it goes back to the Court again, the former “child soldier” in 1995, when the events occurred, could well be a “senior citizen” by the time the system decides his fate.

In the course of remanding the case, the Supremes noted that different interpretations of the statute by the BIA with respect to the duress defense were available. As has become the norm these days, faced with various reasonable possibilities, the Attorney General chose the one “least favorable to the foreign national.”

This case also points out the absurdity of the “Chevron doctrine” in immigration. In 2009 when this case was before the Supremes, there was a clearly developed record. Additionally, it was clear that a number of the then Justices had well-defined, if conflicting, views on the “duress defense” in this context. Yet the Court remanded for the BIA to exercise “Chevron authority” to make another interpretation. That process has taken 11 years!

Whatever happened to the plain old fashioned idea that Justices of our Supremes are paid to decide what the law is so that it can be carried out by the Executive?As I have stated on many occasions, “Chevron deference” is nothing more than “judicial task avoidance” at the highest levels!

The “good news” from the respondent’s standpoint is that the BIA’s prior grant of “deferral of removal” to Eritrea stands. Therefore, it seems likely that he will be able to remain in the U.S. in “limbo” status for the rest of his life, no matter how the asylum litigation eventually plays out.

It also illustrates the extent to which the Government will go to deprive an individual of a chance to regularize status in the United States. This protracted litigation isn’t about “removing a bad guy” from the U.S. Rather it’s about insuring that a foreign national who has been residing here with no apparent incidents for the past 16 years, and is likely to be among us for the rest of his life, will continue to “twist in the wind” without permanent legal status or any chance of becoming a full member of our society.

A regime that mindlessly rushes cases to deportation without fair deliberation in many cases has no problems making the system move at a glacial pace, wasting time, and squandering legal resources when it wants to screw the asylum seeker.

PWS

11-06-20

GONZO’S WORLD: BOGUS “COURT SYSTEM” REVEALED IN ALL OF ITS DISINGENUOUS INGLORIOUSNESS — SESSIONS MOVES TO TRASH THE “LIMITED DURESS” DEFENSE FOR ASYLEES BEFORE TRUMP TURNS HIM BACK INTO A PUMPKIN (AFTER HALLOWEEN) – Why Have A BIA If It Is Only Permitted To Decide Major Issues In Favor Of The DHS Position? — Matter of Daniel Girmai NEGUSIE, 27 I&N Dec. 481 (A.G. 2018)

https://www.justice.gov/eoir/page/file/1101746/download

Cite as 27 I&N Dec. 481 (A.G. 2018) Interim Decision #3943

Matter of Daniel Girmai NEGUSIE, Respondent

Decided by Attorney General October 18, 2018

U.S. Department of Justice Office of the Attorney General

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on: Whether coercion and duress are relevant to the application of the Immigration and Nationality Act’s persecutor bar. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (2012).

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before November 8, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before November 15, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before November 15, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

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

Here’s the BIA headnote a link to Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018):

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

http://immigrationcourtside.com/wp-content/uploads/2018/06/3930.pdf

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

Remains to be seen whether Session’s November 16, 2018 “deadline for brief submission” will exceed his job tenure! But, don’t kid yourself: this decision has already been written, maybe with input or assistance from a “restrictionist” organization. And, even if Sessions departs shortly after the midterms, as most expect, I’m sure Trump will be able to find another “restrictionist patsy” to do his “immigration dirty work” for him.

Want to know how ludicrous Sessions’s action is: This case has been pending before the Immigration Court, the BIA, the Supreme Court, and now the Attorney General for nearly 15 years, with no end in sight. After Sessions rules against Negusie, the case will go back to the Court of Appeals, and then, perhaps, back to the Supremes, assuming Mr. Negusie lives long enough to see it through to its conclusion. When it comes to removing folks without Due Process, “time is of the essence” for guys like Sessions; but, when it comes to screwing asylum seekers, “time has no essence” — whatever it takes, no matter how long it takes.

Additionally, this is a great illustration of the absurd dereliction of duty in the Supreme’s so-called “Chevron doctrine.” It’s a purely judge-created device that enables the Supremes to avoid deciding important and potentially controversial legal issues by, in effect, “shuffling them off to Buffalo” (a/k/a the Executive Branch). Once in “Buffalo,” sometimes dysfunctional and often biased Executive Branch agencies can exercise their (often purely imaginary) “expertise” in construing ambiguous statutes (which is, after all, a question of law that constitutes the only function of the Article III Courts). And, does anybody (other than Jeff Sessions) really think that a politico like Jeff Sessions has any real “expertise” in immigration adjudication?

Interestingly, Justice Gorsuch, like his conservative predecessor the late Justice Scalia, has been openly skeptical of the Chevron doctrine. Perhaps ironically, he, along with the outlandish actions of the Administration that appointed him, could ultimately spell the well-deserved end or limitation of “Chevron deference.”

As we say in the business, stay tuned. But, please, please, don’t “hold your breath” on this one!

PWS

10-18-18

🎃🎃🎃

BETTER LATE THAN NEVER? – After 9 Years, The BIA Finally Completes The Supreme’s Remand – Creates A “Limited Duress Defense” To Persecutor Bar, With Judge Malphrus Dissenting – Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Here’s the link:

3930

BIA HEADNOTE:

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

BIA PANEL: APPELLATE IMMIGRATION JUDGES GRANT, GREER, MAPPHRUS

OPINION BY: Judge Edward R. Grant

CONCURRING & DISSENTING OPINION: Judge Garry d. Malphrus

KEY QUOTE FROM MAJORITY:

In a decision dated May 31, 2005, an Immigration Judge denied the applicant’s applications for asylum and withholding of removal but granted his request for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against Torture”). On February 7, 2006, we dismissed the appeals of both the applicant and the Department of Homeland Security (“DHS”).1 This case is now before us on remand pursuant to a decision of the United States Supreme Court in

1 The DHS does not now challenge the applicant’s grant of deferral of removal under the Convention Against Torture.

347

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Negusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and the arguments presented by the parties and amici curiae, we will again dismiss the applicant’s appeal.2

We conclude that duress is relevant in determining whether an alien who assisted or otherwise participated in persecution is prevented by the so-called “persecutor bar” from establishing eligibility for asylum and withholding of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c) and (d)(2) (2018).3 In this decision, we set forth a standard for evaluating claims of duress in this context. Applying that standard to the uncontested findings of fact in the record, we conclude that the applicant has not established that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.

KEY QUOTE FROM DISSENT:

The United States Supreme Court remanded this case for us to make an “initial determination of the statutory interpretation question,” Negusie v. Holder, 555 U.S. 511, 524 (2009), “with respect to whether an alien who

ORDER: The applicant’s appeal is dismissed.

368

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

was coerced to assist in persecution is barred from obtaining asylum in the United States,” id. at 525 (Scalia, J., concurring). The remand directed us to interpret the statute anew based on principles of statutory construction, free of our prior assumption that Fedorenko v. United States, 449 U.S. 490 (1981), definitively resolved this question. The majority decision is artfully drafted, but it does not engage in this analysis. Instead, the majority reads a duress exception into the 1967 United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and, by extension, the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), that simply does not exist. And it does so essentially by deferring to international expectations of how the Protocol should be interpreted. I cannot agree with this approach.

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

Wow! Deferring to international interpretations and expert interpretations from the UNHCR that actually give an asylum applicant a very circumscribed break for actions he or she was forced to take. Very “Un-Boardy.” Could actually be “career threatening.” No wonder Judge Malphrus wanted to separate himself from any such rational and reasonable actions in the “Age of Sessions & Trump.”
9 years in the making, during which the DHS position changed several times, is a pretty good argument against “Chevron deference” (a/k/a “task avoidance by life-tenured Article III Judges”). What were Immigration Judges supposed to do during those 9 years?
Odds on whether or how long it will take “Gonzo” to intervene?

PWS

06-29-18

BIA ISSUES NEW PRECEDENT SAYING ORE. BURGLARY OF A DWELLING IS CATEGORICAL CIMT: MATTER OF J-G-D-F-, 27 I&N Dec. 87 (BIA 2017) — Hon. Lory Rosenberg Says They Got It Wrong! — + My “Bonus Analysis!”

https://www.justice.gov/eoir/page/file/990986/download

Here’s the BIA’s Headnote:

“Burglary of a dwelling in violation of section 164.225 of the Oregon Revised Statutes is a crime involving moral turpitude, even though the statute does not require that a person be present at the time of the offense, provided that the dwelling is at least intermittently occupied.”

PANEL: BIA Appelllate Immigration Judges PAULEY, WENTLAND & O’CONNOR,

DECISION BY: Judge Pauley

Here’s what former BIA Appellate Immigration Judge Lory D. Rosenberg had to say about it on her blog Appeal Matters and on ILW.com:

Lory D. Rosenberg on Appeal Matters

BIA and Reprehensible Determinations

Rate this Entry

1 Comment

Lrosenberg

, 08-18-2017 at 04:53 PM (600 Views)

In Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017), the BIA has ruled that the Oregon crime of burglary of a dwelling is a crime involving moral turpitude (CIMT) even though a defendant can be convicted of burglary under the Oregon statute for entering or remaining in an unoccupied home. The Board’s analysis is somewhat confounding, ultimately favoring a categorical conclusion that is clearly to the disadvantage of those in the respondent’s position.

(In one fell swoop, the BIA rejected the respondent’s request for withholding and deferral of removal under the Convention Against Torture (CAT) on the basis that the respondent failed to identify an acceptable particular social group as the reason for the threat to his life or freedom and fear of torture, ruling that, “he asserted that he would be targeted by criminals because he would be recognized as someone who has lived in the United States for a long period of time based on his clothing and accent. However, this proposed group lacks particularity, because it is amorphous and lacks definable boundaries. As described, the proposed group could include persons of any age, sex, or background.” Id. at 86.)

There are two central issues presented: Does the Oregon statute in question and, if divisible, the crime of which the respondent was convicted under the Oregon statute, amount to a generic burglary? Assuming it amounts to a burglary, is the crime of which the respondent was convicted a CIMT, involving reprehensible conduct and some degree of scienter?

A few comments in response to the precedential aspects of this decision are warranted.

A conviction of the crime of burglary does not make removal inevitable, not only because there may be post-conviction remedies available, but because the underlying offense is not necessarily a crime involving moral turpitude or an aggravated felony conviction.

As we know, burglary convictions must be analyzed according to the state law under which the crime is defined. The elements of the offense described under state law must match the elements contained in the generic definition of burglary, i.e., unlawful entry into or remaining in a building or structure with the intent to commit a crime. Taylor v. U.S., 495 U.S. 575 (1990).

The respondent argued that the statute was overbroad. Although the respondent asserted that “a violation of the statute does not necessarily involve reprehensible conduct or a culpable mental state since it does not require that a defendant unlawfully enter a dwelling or intend to commit a crime involving moral turpitude at the time he or she enters the building,” id.at 83, the BIA rejected the respondent’s arguments.

The BIA concluded instead that the statute was divisible “with respect to whether a first degree burglary offense involved entering or remaining unlawfully in a dwelling, as opposed to a building other than a dwelling.” Id. at 84-85. Cf. Mathis v. United States, 136 S. Ct. 2243,2249 (2016) (deeming a statute to be divisible if “it list[s] elements in the alternative, and thereby define[s] multiple crimes”)

Under section 164.205(2), the term “dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present. However, the BIA ruled that the statute was not divisible as to whether the building was occupied or not, cutting of any examination of the record with respect to that aspect of the crime.

The records in the instant case contained no equivocation regarding the nature of the respondent’s conviction. In fact, once the statute in the instant case was treated as divisible as to “entering or remaining unlawfully,” the record clearly identified the crime of which the respondent was convicted. As the BIA stated expressly, “the judgment and plea agreement for the respondent’s conviction show that he pleaded to “Burglary I” as charged in Count 2 of the charging document, which alleged that the offense occurred ‘in an occupied dwelling.’” Consequently, the BIA affirmed the IJ’s conclusion that, “according to the respondent’s record of conviction, he was convicted under the prong of section 164.225 that requires entering or remaining unlawfully in a “dwelling” with the intent to commit a crime.” Id. at 86.

But that begs the question.

Today’s decision in Matter of J-G-D-F-, expands on the BIA’s prior precedent in Matter of Louissaint, 24 I&N Dec. 754, 756 (BIA 2009), and distorts the longstanding BIA standard requiring that crimes involving moral turpitude must contain “two essential elements: reprehensible conduct and a culpable mental state,” Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016). Prior to Louissant, the BIA honored the reasonable limitation that a crime was to be considered a CIMT only if the crime accompanying the unlawful entry was itself turpitudinous.

In Louissaint, the BIA held that the “conscious and overt act of unlawfully entering or remaining in an occupied dwelling with the intent to commit a crime is inherently ‘reprehensible conduct’ committed ‘with some form of scienter.’” Matter of F-G-D-F-, supra. at 87 (quoting Matter of Louissaint, 24 I&N Dec. at 758 (citation omitted)). The rationale underlying this conclusion was the fact that the building was occupied and the victim’s presence involved an expectation of privacy and security. By drawing the conclusion that every unlawful entry of a dwelling, whether occupied or not at the time of the offense, amounts to “reprehensible conduct” the BIA evades prior caselaw which had focused on the specific crime that was intended. Cf. Matter of M-, 2 I&N Dec. 721 (BIA, A.G. 1946).

c. 2017 Lory D. Rosenberg, www.Loryrosenberg.com

**********************€*€€€

Nolan Rappaport asked me what I think, pointing out that burglary is a serious crime. I agree that burglary is a serious crime, but that doesn’t necessarily answer the question of whether it involves moral turpitude.

As Lory points out, in an early precedent, Matter of M-, 2 I&N Dec. 721 (BIA, AG 1946), the BIA found that the key to moral turpitude in a burglary conviction is not the breaking and entering into the building itself, but the nature of the crime the individual intended to commit following the breaking and entering.

Later, in Matter of Louissaint, 24 I&N Dec. 754, 756 (BIA 2009), the BIA chipped away at the M- rule. The Board focused on the breaking and entering, rather than the crime, and held that burglary of an occupied dwelling is a categorical cimt, without regard to what crime the respondent might have intended.

In Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017) the BIA basically annihilated the M- rule by holding that entry into a dwelling that might be occupied was a categorical cimt without regard to the crime intended.

As a trial judge, I found the M- rule relatively straightforward and easy to apply (or as straightforward and easy to apply as anything in the convoluted cimt area). Applying that rule to the facts in J-G-D-F-, under the “categorical” approach, the “least possible crime” included in NC first degree burglary would be entry into an unoccupied dwelling in possession of burglary tools. I would find that not to be a cimt.

Applying the Louissaint expansion, I would have concluded because unlike Louissant the dwelling was unoccupied, there was still no cimt.

But, of course applying J-G-D-F-, I would have been required to find a cimt.

So, the current state of the law at the BIA appears to be this. First, apply M– to see if you can find a cimt.

If not, second, see if an occupied dwelling was involved so that the respondent has committed a cimt under Louissaint.

If not, third, see if an unoccupied dwelling might have been involved so that it’s a cimt under J-G-D-F-

Fourth, if all of the foregoing steps fail to produce a cimt, the judge should think of some other rationale for finding a cimt. Because, if the judge doesn’t and the DHS appeals, the BIA will find one anyway. After all, burglary sounds bad.

I find it interesting and somewhat ironic that after the Matter of M- approach gained acceptance from the 9th Circuit, where most petitions to review BIA decisions arise, the BIA has chosen to basically overrule M- without specifically saying so.

In the past decade and one-half, the BIA has often taken the most inclusive position on criminal removal statutes. As a result, the BIA is overruled with some regularity on petitions for review by the Federal Circuit Courts all the way up to the Supreme Court. The latter has been particularly critical of the BIA’s inclusive approach to minor drug convictions.

Notwithstanding this, I wouldn’t expect any change in the BIA’s “hard line approach” to criminal removal under the Sessions regime. After all, the “new mission” of EOIR is to churn out as many final removal orders as possible as quickly as possible with as little due process as possible. And, expansive readings of criminal removal statutes also helps produce more mandatory detention (which Jeff Sessions loves, along with those who are making a killing running private detention centers with substandard conditions).

So from a “job retention” standpoint, getting reversed on review by the Federal Courts probably won’t be a problem for Immigration Judges and Appellate Immigration Judges within DOJ as long as the reversals come in the context of expanding removals and restricting due process.

Finally, I’d never bet against Judge Lory Rosenberg’s analysis on any criminal immigration matter. Lory always had a much better handle on where the Federal Courts were going on criminal removal than the rest of us BIA Appellate Judges, including me. And, over the years since she was forced out of her judicial position, she has been proved right over and over by Federal Courts including the Supremes. Indeed, the Supremes cited one of her dissents in reversing the BIA in St. Cyr (check out FN 52). I’m not aware of any other BIA Appellate Judge who has been cited by name. (Although my good friend and beloved former colleague Judge Wayne Stogner of the New Orleans Immigration Court did get an individual “shout out” for his carefully analyzed trial decision in Nuegusie v. Holder.)

At this point, I’m thinking that Lory’s view will prevail in at least come Circuits. Time will tell.

PWS

08-25-17

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.”

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

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

Catherine writes in WashPost:

POST EDITORIAL BOARD: Death, Murder, Rape, Torture, Assault, Robbery, Extortion, Kidnapping of Hispanics, Blacks, Other Forced Migrants A Small Price To Pay For Bipartisan Deal To Outsource Migration To Gangs, Cartels, and Traffickers!

🇺🇸 Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

Due Process Forever!

Related posts:

Related posts:

Related posts:

Related posts:

Lory D. Rosenberg on Appeal Matters

BIA and Reprehensible Determinations

Rate this Entry

Related posts:

Related posts: