Supreme Court – Page 6 – immigrationcourtside.com

⚖️ APTLY-CAPTIONED U.S. v. TEXAS WILL TEST SUPREMES’ WILLINGNESS TO STAND UP AGAINST TRUMP’S OUTLAW FEDERAL JUDGES & RACIST GOP STATE AGs!

Trump Judges — Trump Federal Judges Tilt Against Democracy
Republished under license

https://apple.news/AT659B9r2TJqCsmk0-8ONZw

A Trump judge seized control of ICE, and the Supreme Court will decide whether to stop him

Judge Drew Tipton’s order in United States v. Texas is completely lawless. Thus far, the Supreme Court has given him a pass.

By Ian Millhiser | November 27, 2022 8:00 am

In July, a Trump appointee to a federal court in Texas effectively seized control of parts of Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws within US borders. Although Judge Drew Tipton’s opinion in United States v. Texas contains a simply astonishing array of legal and factual errors, the Supreme Court has thus far tolerated Tipton’s overreach and permitted his order to remain in effect.

Nearly five months later, the Supreme Court will give the Texas case a full hearing on Tuesday. And there’s a good chance that even this Court, where Republican appointees control two-thirds of the seats, will reverse Tipton’s decision — his opinion is that bad.

The case involves a memo that Secretary of Homeland Security Alejandro Mayorkas issued in September 2021, instructing ICE agents to prioritize undocumented immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being” when making arrests or otherwise enforcing immigration law.

A federal statute explicitly states that the homeland security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities,” and the department issued similar memos setting enforcement priorities in 2005, 2010, 2011, 2014, and 2017.

Nevertheless, the Republican attorneys general of Texas and Louisiana asked Tipton to invalidate Mayorkas’s memo. And Tipton defied the statute permitting Mayorkas to set enforcement priorities — and a whole host of other, well-established legal principles — and declared Mayorkas’s enforcement priorities invalid. This is not the first time that Tipton relied on highly dubious legal reasoning to sabotage the Biden administration’s immigration policies.

. . . .

Even when the law offers no support for the GOP’s preferred policies, in other words, the Court permits Republicans to manipulate judicial procedures in order to get the results they want. The Texas attorney general’s office can handpick judges who they know will strike down Biden administration policies, and once those policies are declared invalid, the Supreme Court will play along with these partisan judges’ decisions for at least a year or so.

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Once the GOP got the upper hand on the Federal Bench, the “traditional” conservative case for “judicial restraint” went straight down the tubes under an assault by righty ideologues eager to “do in” precedents, laws, and Executive policies that don’t fit their “out of the mainstream” political agenda, no matter how thinly reasoned or often counterfactual their “cover” might be.

And, as usual, Dems have been slow on the uptake about getting younger, staunch defenders of democracy and our Constitution on the bench to counteract the right-wing’s Article III takeover.

As this article points out, the Supremes’ questionable “shadow docket” is manipulated by the Court’s righty majority improperly to favor GOP scofflaw tactics, even where they ultimately can’t concoct a legal basis to uphold them on the merits.

⚖️🗽👩🏻‍⚖️Better judges for a better America!

🇺🇸 Due Process Forever!

PWS

11-28-22

🇺🇸ELECTION 2022 – PERRY BACON JR @ WASHPOST GETS IT ALMOST RIGHT — Except He Omits One Of Most Overlooked, Under-appreciated, & Over-achieving Groups In The Dem Base: Immigration/Human Rights/Racial Justice Advocates & Supporters!

https://www.washingtonpost.com/opinions/2022/11/21/democratic-voters-won-the-midterms-strategy/

The heroes of the 2022 midterm elections were Democratic voters and activists, not the party’s leadership. Those leaders should remember that and not try to distance themselves from the party’s base as they have at times in the past two years.

Though they changed course in the final months before the election, the Biden administration and congressional Democrats spent much of 2021 and 2022 on a flawed strategy. Democratic leaders were determined to boost the party with people who didn’t vote for Joe Biden in 2020, particularly the White voters without college degrees who have shifted sharply to the GOP over the last decade. So Democrats focused largely on economic policy, such as the American Rescue Plan, the infrastructure bill and a law making it easier to manufacture microchips in the United States. They intentionally highlighted how these provisions would help people without college degrees and people in rural areas.

They at times sidelined other issues, such as voting rights, that might not be the priorities of White voters without college degrees. In July, a top White House official, communications director Kate Bedingfield, bashed party activists who complained that the administration wasn’t responding aggressively enough to the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling eliminating the right to an abortion. And Democrats moved to the right on some issues, most notably policing. There were constant efforts to court moderate GOP voters and lawmakers and sideline prominent left-wing figures.

. . . .

The Democrats didn’t do well in this year’s elections by flipping lots of voters in places that voted Republican in 2020, such as Florida and Ohio. What they did was maintain strength in the congressional districts and states that they won two years ago and four years ago. The party’s base prevented the bottom from falling out.

Party officials are rushing to give credit — to one another. And some of the party’s leaders do deserve praise. Candidates such as Gov. Gretchen Whitmer of Michigan, who easily won reelection, and Pennsylvania Gov.-elect Josh Shapiro early in their campaigns highlighted abortion and democracy, in addition to the economy. Biden rightly ignored some in the party who argued he should not talk about democracy issues in the final days of the campaign.

But in elections, the voters are the actors, the deciders. And this year, millions of Democratic-leaning voters turned out and stuck with the party, looking past sky-high inflation and a leadership team that spent much of its time courting people who would never vote for Democrats while ignoring key priorities of people who always vote for the Democrats.

These voters should be commended and celebrated.

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

Read the complete op-ed at the link.

Perry my friend, let’s go back just a bit in time and think about the “original targets” of Trump’s MAGA GOP “platform” of hate, lies, false narratives, and virulent anti- democracy insurrection masquerading as “patriotism!”

Who’s been out there fighting for truth, justice, and equality before the law since “Day 1” of the MAGA hate movement? Who led the resistance at airports when the first manifestations of the Trump regime’s neo-Nazism in action began just shortly after his inauguration? Who took the legal fight to preserve American democracy all the way to the Supremes before a right-leaning majority still wedded to Dred Scott and the Chinese Exclusion cases tilted in favor of tyranny? A tilt, I might add that has progressively gotten worse over time and has spawned millions of human rights abuses, enabled torture, and actually helped kill some of the vulnerable humans we were sworn to protect?

Historically, migrants of all types, voluntary or involuntary, have constituted the “other” in America — targeted, disadvantaged at law, and exploited by their fellow Americans even while being the essential ingredient that has built our nation.

It’s rather odd, considering that 98% of us were “the other” at some point in history. I suppose a reckoning with that “inconvenient truth” is one of a number of reasons why the MAGA GOP works so hard to “whitewash” American history.

So, it’s worth thinking about why a talented group, their expertise, and their “learned wisdom” — and the better America for all that they represent and fight for — becomes so expendable and ignored by Dems between election cycles. Also worth reflecting on where American democracy, tenuous as it might be today, would be without them.

If the Biden Administration had honored and “leveraged” the immigration experts who helped elect it in 2016 and preserve it in 2022, we might well have order at the border, many more legal workers, lower inflation, decreasing backlogs, focused immigration enforcement that preserves national security, courts that model equal justice and due process and help develop the Article III Judiciary of the future, creative ideas for helping the economy of rural America, smarter use of taxpayer dollars, the list goes on. Success in these areas might even have enabled Dems to hold onto the House or given them a bigger margin in the Senate.

🇺🇸 Due Process Forever!

PWS

11-28-22

🇺🇸🦸🏻‍♀️⚖️🗽👩🏻‍⚖️ PROFILE IN GREATNESS! — Kathleen Guthrie Woods Sits Down With One Of America’s Most Consequential Jurists, NDPA Hall-of-Famer 🥇 Judge (Ret.) Dana Leigh Marks On Leading & Inspiring From the Gritty Trenches Of American Justice & Her Exciting New Role As “NanaDana!” 🥰

Hon. Diana Leigh Marks — Hon. Dana Leigh (“NanaDana”) Marks
U.S. Immigration Judge (Ret.)
San Francisco Immigration Court
Past President, National Association of Immigration Judges; “Founding Mother of U.S. Asylum Law”

https://www.sfbar.org/sfam/q3-2022-unpacking-the-legacy-of-judge-dana-leigh-marks/

By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”

Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.

Who is Judge Marks, and how did she positively influence and impact so many lives?

. . . .

Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.

. . . .

“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.

“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”

“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”

*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).

Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).

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Every judge, lawyer, and law student in America, and particularly AG Garland and his lieutenants, should read Kathleen’s interview with Judge Marks (full version at link) about what “American judging” should, and could, be — all the way up to the Supremes!

Dana, my friend and colleague, your inspiring career is yet more evidence of the “then-available” talent who could have led long-overdue change at EOIR and the BIA. Like you, much of that talent has moved on to our Round Table, and we’re stuck with the dysfunctional mess at EOIR. But, others are arising in your image to fight for justice, sanity, and humanity from “the retail level on up” in our Federal Courts.

I will always think of you as the “Founding Mother of US Asylum Law” because of your stellar advocacy in Cardoza-Fonseca and your unending, unapologetic, and highly vocal commitment to due process, independent thinking, and judicial excellence.

As you probably remember, I was in Court for your OA in Cardoza-Fonseca, sitting at the SG’s table as you won the day for your client. My “client,” INS, “lost” that day. But, American justice, due process, and human rights won!

As it was for you and those many you inspired, “realizing the promise of Cardoza-Fonseca” became the “guiding light” of my subsequent judicial career at EOIR, on both the appellate and trial benches. Despite the more than quarter-century since Cardoza, the battle to make judges at all levels actually follow its dictates, and perhaps more importantly, its generous humanitarian spirit, is far from won!

Congrats on your new position as “NanaDana.” 😎 I always look forward to working with you and our amazing Round Table colleagues to give due process and fundamental fairness an unyielding voice before courts throughout America, and to continue the unending fight for best judicial practices in a life-determining system that has “lost its way” as millions needlessly suffer!”

We “Knightesses and Knights of our Round Table” 🛡⚔️ will “never let the bastards grind us down!” You continue to inspire all of us in our never ending quest for justice for the most vulnerable individuals among us!

Due Process Forever! 🗽😎⚖️👩🏻‍⚖️

Your friend & colleague, forever, ❤️

PWS

11-22-22

🇺🇸⚖️🗽👩🏻‍⚖️ ROUND TABLE WEIGHS IN @ SUPREMES ON UNCONSTITUTIONAL VAGUENESS OF “CRIME INVOLVING MORAL TURPITUDE!” — With Lots of Help From Our Friends @ Georgetown Law Appellate Courts Immersion Clinic! — Daye v. Garland

Introduction and Summary of Argument

This brief presents amici’s practical perspective on why the Immigration and Nationality Act’s provision for removal based on a conviction for a “crime involving moral turpitude” is void for vagueness. Section 1227(a)(2)(A) combines the imprecision of the phrase “moral turpitude” with the indeterminacy of applying that phrase to a hypothetical set of facts

1 Counsel of record for all parties received notice of amici’s intent to file this brief at least ten days before its due date. The parties have consented to this filing. No counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel made a monetary contribution to the preparation or submission of this brief.

2

under the categorical approach. The result is a provision so vague that adjudicators cannot agree on how to conduct the inquiry and frequently reach inconsistent results.

The Act charges immigration judges with determining which crimes involve “moral turpitude.” Though the statute provides no definition, in 1951, this Court held that the “language conveys sufficiently definite warning as to the proscribed conduct.” Jordan v. De George, 341 U.S. 223, 231-32 (1951). But time has disproved that understanding. The usual “consistency [that] can be expected to emerge with the accretion of case law,” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 550 (3d Cir. 2018), has not materialized. Indeed, the typical sources of clarity—the Board of Immigration Appeals and the courts of appeals—have produced more questions than answers. Whose morals matter? How should judges discern what those morals are? What course should judges follow when moral views conflict? How do they account for changes in views over time? Immigration judges have no way to know. And the uncertainty that the statute’s vague words create left amici with no guide except their own moral intuitions.

To this ambiguity, add that, under the categorical approach, immigration judges do not evaluate the actual conduct engaged in by the noncitizen before them. Instead, they must assess the moral implications of a theoretical set of facts—the “least culpable” means of committing the crime in question. The hypothetical nature of this mode of analysis exacerbates the underlying vagueness of the statutory phrase “crime involving moral turpitude.”

3

Recently, this Court has struck down statutory provisions that suffered from analogous uncertainty, holding each unconstitutionally vague. See Johnson v. United States, 576 U.S. 591 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis, 139 S. Ct. 2319 (2019). Section 1227(a)(2)(A) should suffer the same fate.

The real-world effects of Section 1227(a)(2)(A)’s vagueness confirm this conclusion. Attempts to curtail the provision’s arbitrariness by articulating standards have failed. The Board and the courts of appeals have repeatedly but unsuccessfully tried to craft a workable set of rules for identifying which crimes involve moral turpitude. Their efforts have instead produced a series of non-dispositive, ad hoc tests that generate inconsistent and arbitrary results. Confusion abounds in immigration courts and in Article III courts alike, with widespread disagreement over whether a given crime involves moral turpitude. Among other unexplainable outcomes, the courts of appeals part ways on whether crimes such as making a terroristic threat or deceptively using a social security number involve moral turpitude. Amici were required to sort through this morass, unsure of which of the growing list of ad hoc tests applied or how to deal with the conflicting results. Their experiences confirm that the phrase “moral turpitude” is too vague to govern the “particularly severe ‘penalty’” of removal. Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)).

For these reasons, this Court should grant review and reverse.

Read the complete brief here:

Daye Amicus Brief To File 11.14.22

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For over 70 years, Federal Judges from the Supremes on down have turned a “blind eye” to our Constitution and substituted their subjective views on morality and immigrants for the rule of law. Our Round Table says it’s high time to stop! ⚔️🛡

Thanks again to the superstars Esthena L. Barlow, Brian Wolfman, Counsel of Record Madeline Meth, and the rest of the “Youth Brigade of the NDPA” over @ Georgetown Law!

🇺🇸 Due Process Forever!

PWS

11-16-22

🤯BILL FRELICK @ THE HILL BLASTS BIDEN’S SCOFFLAW, ELITIST MISTREATMENT OF VENEZUELAN REFUGEES! — Welcome A Few Of The Well-To-Do, Give Others In Need The Screw! 🔩☠️ — Whatever Happened To The Refugee Act of 1980 & The Rule Of Law?

Too many Biden Administration Immigration officials appear to share Stephen Miller’s “upside down” view of the Statue of Liberty, in whole or in part! Why can’t they just follow the Refugee Act of 1980 and establish the robust, timely, generous legal approach to refugees and asylum seekers that best serves America?

https://thehill.com/opinion/immigration/3704714-bidens-new-plan-no-help-for-desperate-venezuelan-refugees/

Refugees are people who flee for their lives. Escape from danger and abuse is usually chaotic, sudden, desperate. The Biden administration’s rollout of its new policy for Venezuelan refugees seems oblivious to this refugee reality and risks doing more harm than good.

. . . .

Announcing the program on Oct. 12, Homeland Security Secretary Alejandro N. Mayorkas said Venezuelans who enter irregularly “will be returned to Mexico.”

He didn’t mention — and appeared to disregard — U.S. law, which recognizes that anyone who arrives in the United States has the right to seek asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status.”

The impact of this announcement, “effective immediately,” was the summary return to Mexico without examination of their asylum claims of any Venezuelans entering the United States without authorization. Mexico has given no assurances that it will examine their refugee claims or provide asylum to those who fear return to Venezuela. In fact, the 4,050 Venezuelans expelled to Mexico since the implementation of the policy have been given visas valid for only one week and instructed to leave the country.

. . . .

With the Biden administration’s plan in effect, we might as well apply a blowtorch to Emma Lazarus’s welcoming poem at the foot of the Statue of Liberty and chisel in a new message: “Give me your well-rested, your well-to-do, your properly ticketed jet-setters yearning to breathe free.”

Bill Frelick is the refugee rights director at Human Rights Watch. Follow him on Twitter @BillFrelick.

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Read Bill’s complete op-ed act the link. Bill is one of many “practical experts” who would do a much better job than current Administration politicos in establishing and running a refugee and asylum program that would comply with the law, due process, human dignity, and America’s best interests. Why is Biden following the lead of his “clueless (and spineless) crew?”

The Refugee Act of 1980 was enacted and amended to deal with these situations! Robust, realistic refugee programs outside the U.S. should encourage many refugees to apply, be screened abroad, and admitted legally.

Other refugees arriving at our border can be promptly screened for credible fear. Those who fail that test can be summarily removed in accordance with existing law.

Those who pass that test should have access to counsel and receive timely, expert adjudications, with full appeal rights, under the generous “well founded fear” (1 in 10 chance) international standard established by the Refugee Act. See, e.g., INS v. Cardoza-Fonseca (Supremes); Matter of Mogharrabi (BIA).

It’s not “rocket science!” With dynamic, experienced refugee experts running the system and “practical scholars” with expertise in refugee processing and human rights laws serving as USCIS Asylum Officers and EOIR judges at the trial and appellate levels the legal system should be flexible enough to deal with all refugee situations in an orderly manner.

Many, probably a majority, of today’s asylum seekers should be granted asylum and admitted to the U.S. in full legal status, authorized to work, and on their way to green cards and eventual citizenship. Like those admitted from abroad, they could also be made eligible for certain resettlement assistance to facilitate integration into American communities who undoubtedly will benefit from their presence.

The more robust, realistic, and timely our overseas refugee programs become, the fewer refugees who will be forced to apply for asylum at our borders. Also, real, bold, dynamic humanitarian leadership, including accepting our fair share of refugees and asylees, could persuade other countries signatory to the Geneva Refugee Convention to do likewise.

No insurmountable backlogs; no bewildered individuals wandering around the U.S. in limbo waiting for hearings that will never happen; few “no shows;” no long-term detention; no botched, biased “any reason to deny” decisions from unqualified officers and judges leading to years of litigation cluttering our legal system, no diverting Border Patrol resources from real law enforcement, no refugees huddled under bridges or sitting on street corners in Mexico!

It’s not “pie in the sky!” It’s the way our legal system could and should work with competent leadership and the very best available adjudicators and judges! It would support the proper, important role of refugees as an essential component of LEGAL IMMIGRATION, not an “exception” or “loophole” as racists and nativists like to falsely argue.

Instead of demonstrating the competence and integrity to use existing law to deal with refugee and asylum situations, the Biden Administration resorts to ad hoc political gimmicks. Essentially, the “RA80” has been repealed “administratively.” Effectively, we’re back to the “ad hoc” arbitrary approaches we used prior to ‘80 (which I worked on during the Ford Administration, and where I recollect I first heard of Bill Frelick).

I doubt that the late Senator Ted Kennedy, former Rep. Elizabeth Holtzman, and the rest of the group who helped shepherd the Refugee Act of 1980 through Congress would have thought that using Border Patrol Agents as Asylum Officers or packing the Immigration Courts and the BIA with judges prone to deny almost every asylum claim, regardless of facts or proper legal standards, was the “key to success!”

Congress specifically intended to eliminate the use of parole to deal with refugees except in extremely unusual circumstances, not present here. Biden’s latest ill-advised gimmick violates that premise. It’s totally inexcusable, as the refugee flow from Venezuela is neither new nor unpredictable. I was granting Venezuelan asylum cases before I retired in June 2016. Even then, there were legions of documentation, much of it generated by the USG, condemning the repressive regime in Venezuela and documenting the persecution of those who resisted!

A better AG would say “No” to these improper evasions of existing law. But, we have Merrick “What Me Worry” Garland! His botching of the Immigration Courts has been combined with a gross failure to stand up for equal justice for migrants (particularly those of color) across the board! America and refugees deserve better from our chief lawyer.

The Refugee Act of 1980 actually provides all the tools and flexibility the Biden Administration needs to establish order on the border and properly and fairly process refugees and asylees. Why won’t they use them?

Alfred E. Neumann — AG Merrick Garland has “looked the other way” while the Biden Administration flaunts applicable protection laws in and outside the U.S. He also runs a dysfunctional “court system” where anti-asylum bias, worst practices, poorly qualified decision makers, and grotesque inconsistencies undermine the legal rights of asylum seekers and other refugees. Doesn’t America deserve more competence from its top lawyer?
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

10-28-22

⚖️ HON. “SIR JEFFREY” CHASE ON LOZADA/INEFFECTIVE ASSISTANCE OF COUNSEL— Reviving My “Rivera Dissent,” While Highlighting More Than A Decade Of EOIR/DOJ Failure To Provide Effective Guidance!

https://www.jeffreyschase.com/blog/2022/10/11/amending-lozada

Amending Lozada?

October 11, 2022

In 1984, the Supreme Court in Strickland v. Washington announced the standard for determining when the Constitution’s Sixth Amendment right to counsel requires the overturning of a criminal conviction due to ineffective assistance of counsel.1 Strickland involved a death penalty case; on its winding path to the Supreme Court, a circuit court panel found in the defendant’s favor. That ruling was later overturned; the defendant was executed two months after the Supreme Court’s decision established a standard that the defendant could not satisfy.

A commentator writing years later could find no record of a malpractice claim or disciplinary complaint of any type having been filed against the attorney impugned in that case.2 The commentator cited this example in making the point that attorneys who are found to be Constitutionally deficient in criminal defense cases very rarely face disciplinary complaints.3 And the standard for establishing ineffective assistance laid out in Strickland does not require the filing of any such complaint.4

By contrast, the requirements for claiming ineffective assistance of counsel in immigration proceedings were set forth by the Board of Immigration Appeals in its 1988 decision Matter of Lozada.5 As immigration proceedings are civil in nature, the Sixth Amendment right to counsel was found not to apply; the Board determined that a right to counsel in the removal context “is grounded in the fifth amendment guarantee of due process.”6The BIA thus created its own standard in Lozada that requires (1) filing an affidavit attesting to the relevant facts; (2) informing prior counsel of the allegations, and providing any response received; and (3) if claiming “a violation of ethical or legal responsibilities” by prior counsel, indicating “whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”7

A practice advisory of the American Immigration Council points out that requirement number three “on its face…does not require filing a bar complaint in all circumstances.”8 The AIC advisory cites circuit decisions excusing the filing of disciplinary complaints, including Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3d Cir. 2007) (allowing no bar complaint “where counsel acknowledged the ineffectiveness and made every effort to remedy the situation”), and Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (holding that Lozada only requires an explanation of whether a bar complaint was submitted, not proof that the complaint was filed).9

Nevertheless, a 1996 BIA precedent, Matter of Rivera,10 underscores the risk of not filing a bar complaint. In that case, the requirements of Lozada were satisfied. As to the third requirement, new counsel indicated that a disciplinary complaint was not filed against prior counsel because “if any error was made in this case it was a postal error or an error of inadvertence by [former counsel].”11 Although this explanation accorded with Lozada, as it was explained both whether a bar complaint was filed and why, the Board rejected the explanation as insufficient.

The majority opinion in Rivera went on to provide a list of reasons why it considered “[t]he requirement of a bar complaint” important in ineffective assistance claims. A dissenting opinion written by then-BIA chair Paul Schmidt addressed the issue far more sensibly:

I do not need a Lozada motion or a state bar complaint to find that ineffective assistance has occurred here. The respondent’s affidavit and that of former counsel are sufficient to establish that former counsel’s duties to the respondent were not properly discharged. There is no hint of collusion between former counsel and the respondent. Under these circumstances, I see no basis for making the filing of a state bar complaint the determinative factor…12

Thus, in Rivera (and in a subsequent precedent, Matter of Assaad,13 the Board reframed the need to file a disciplinary complaint as a categorical requirement under Lozada. But in its circumstance-specific approach, Judge Schmidt’s dissent raised the question of whether this requirement is really necessary.

Nearly six years after Rivera, the answer to that question came from an unlikely source. Matter of Lozada was briefly vacated in the final days of the Bush Administration by then Attorney General Michael Mukasey.14His decision reframed ineffective assistance claims from a due process right into a discretionary agency action, and in doing so, created a new, tougher standard for establishing ineffective assistance that far fewer respondents would be able to satisfy. But interestingly, the A.G.’s decision felt the need to rethink the Board’s disciplinary complaint requirement:

By making the actual filing of a bar complaint a prerequisite for obtaining (or even seeking) relief, it appears that Lozada may inadvertently have contributed to the filing of many unfounded or even frivolous complaints. See, e.g., Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (“Under the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline.”). Such unfounded complaints impose costs on well-intentioned and competent attorneys, and make it harder for State bars to identify meritorious complaints in order to impose sanctions on lawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the [noncitizen] submit to the Board a completed and signed but unfiled complaint…15

In light of these concerns, the new Compean standard still required the preparation of a disciplinary complaint against prior counsel, but (perhaps in a bizarre nod to Moses E. Herzog) added that the respondent “need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required.”16

Less than five months after its issuance, Compean was vacated by Mukasey’s successor, Attorney General Eric Holder, thus restoring the Lozada standard, along with its mandatory bar requirement.17 Holder’s decision further directed EOIR to draft proposed regulations on the topic for public comment “as soon as practicable.”18

When the agency finally published those proposed regulations more than seven years later, they retained Rivera’s mandatory complaint requirement.19 In its comments to the proposed rule, the American Immigration Lawyers Association opined that the mandatory complaint requirement should be eliminated, stating that “rather than centering on attorney discipline, the rules governing ineffective assistance of counsel should focus on assisting and protecting the noncitizen victim…” The comment continued that “EOIR already has ample existing procedures to police the immigration bar without requiring the filing of a formal complaint.”20As no final rule was ever published, we don’t know EOIR’s reaction to the comment.

Another six years later, the question first raised in the Rivera dissent, and to which a Bush Administration Attorney General and leading bar groups seem in agreement on the answer, remains unresolved.Recently, immigration law experts have revived the issue.21As those experts again point out, the purpose of reopening a proceeding in which attorney error occurred is to remedy a harm that was beyond the respondent’s ability to control. The focus on correcting the harm (as opposed to punishing the lawyer) is why in the criminal context bar complaints rarely if ever accompany ineffective assistance claims. The lack of sucha requirement allows attorneys to admit to their occasional errors without fear of retribution.

In its unique approach to the contrary, the BIA discourages attorneys from being forthcoming about their errors, and further forces counsel to turn on their own colleagues for acts that would not warrant the extreme action of a bar complaint in any other context. It seems remarkable that even an Attorney General decision issued during the Bush Administration acknowledged that most bar complaints filed pursuant to Lozada are “unfounded” and “impose costs on well-intentioned and competent attorneys,” while also hampering state bars from identifying and disciplining genuine incidents of malpractice.

According to one proponent of amending the standard, attorney Rekha Sharma Crawford, the current Lozada requirement pits members of the private bar against one another in a very destructive way, and adds unnecessary stress on the immigration removal defense counsel who are often at the forefront of these claims-many which are meaningless and done only to comply with Lozada.22

Hopefully, this will be the year that the agency finally gets around to resolving this issue by removing the mandatory complaint requirement of Lozada, and thus bringing the standard in immigration proceedings into alignment with those required in other civil and criminal courts and tribunals.

Copyright 2022 Jeffrey S. Chase.All rights reserved.

Notes:

466 U.S. 668 (1984).

Joseph H. Ricks, Raising the Bar: Establishing an Effective Remedy against Ineffective Counsel, 2015 BYU L. Rev. 1115, 1120 (2016).

Id.

The Strickland standard requires a finding that (1) counsel’s performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability that the result would have been different if not for counsel’s inadequate performance.

19 I&N Dec. 637 (BIA 1988).

Id. at 638.

Id. at 639.

American Immigration Council, Practice Advisory, “Seeking Remedies For Ineffective Assistance of Counsel in Immigration Cases,” (Jan. 2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/seeking_remedies_for_ineffective_assistance_of_counsel_in_immigration_cases_practice_advisory.pdf, at 11.

Id.

10.21 I&N Dec. 599 (BIA 1996) (en banc).

11.Id. at 606.

12.Id. at 608. It bears noting that Judge Schmidt, and two of the three Board Members who joined in his dissent (Lory Rosenberg and Gustavo Villageliu) are presently members of the Round Table of Former Immigration Judges.

13.23 I&N Dec. 553 (BIA 2003).

14.Matter of Compean, Bangaly, & J-E-C-, 24 I&N Dec. 710 (A.G. Jan. 7, 2009).

15.Id. at 737-38.

16.Id. at 737. Moses E. Herzog, the fictional protagonist of Saul Bellow’s novel Herzog, authored numerous strongly-worded letters that he never sent.

17.Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009).

18.Id. at 2.

19.81 Fed. Reg. 49556, 49565 (July 28, 2016), https://www.federalregister.gov/documents/2016/07/28/2016-17540/motions-to-reopen-removal-deportation-or-exclusion-proceedings-based-upon-a-claim-of-ineffective.

20.Comment filed by the American Immigration Lawyers Association (Sept. 26, 2016), in response to the Proposed Rule for Motions Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 145 (July 28, 2016).

21.See, e.g., an October 3 AILA Roundtable, “Changing the Bench: A New Narrative on Lozada and Bar Complaints.”

22.Private email to the author.

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

Republished by permission.

As “Sir Jeffrey points out,” in Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009), AG Eric Holder directed EOIR to promulgate new regulations providing guidance on ineffective assistance of counsel. More than seven years later, in 2016 — essentially the entire Obama Administration — DOJ/EOIR issued flawed “proposed” regulations. Not surprisingly, no final regulations were ever issued. A dozen yers after the AG directed EOIR to take action — a big “nothingburger.”

This by no means is the only example of EOIR/DOJ’s unsuitability to the task facing it. It’s reminiscent of the tortured history of the “gender based asylum” regulations ordered by former AG, the late Janet Reno, but issued only as a badly flawed proposal and never finalized.

Additionally, incoming President Joe Biden made issuing “gender based regulations” one of his Administration’s highest priorities, ordering action by October 2021. A year later — nothing!

Meanwhile, EOIR Judges’ applications and interpretations of the governing precedent on gender-based asylum — Matter of A-R-G-G- — are wildly inconsistent. Beyond that, the 5th Circuit has taken the right-wing misogynistic “liberty” of simply ignoring the law on gender-based asylum.

“Lozada reform” is long overdue. But, so is meaningful EOIR reform!

Ultimately, America needs and deserves an independent U.S. Immigration Court with exceptionally well-qualified judges, at all levels, who are recognized experts in asylum law and unswervingly committed to due process and best judicial practices.

Until then, those appearing in Immigration Court — disproportionately individuals of color and women — and their hard-working attorneys — will continue to receive grossly substandard “justice” from “Justice!”

🇺🇸 Due Process Forever!

PWS

10-12-22

🏴‍☠️ HOW THE “ANYTHING GOES” IMMIGRATION ENFORCEMENT REGIME — ENABLED BY POOR QUASI-JUDICIAL & JUDICIAL OVERSIGHT — ERODES ALL OF OUR CIVIL LIBERTIES!

Eisha Jain on Lawfare:

https://www.lawfareblog.com/beyond-deportation

Border enforcement once again dominates contemporary immigration law debates. Yet many legal practices commonly linked to border control—including policing, relocation, and exclusion—actually have little to do with immigration enforcement. Instead, immigration control provides a justification for surveillance and the erosion of civil liberties deep inside the United States. For instance, the governor of Texas issued an executive order this June, asserting the legal authority to arrest people suspected of unlawfully crossing the border or committing “other violations of federal law.” This executive order is framed as being about expanding the pipeline to deportation and, in particular, shoring up federal efforts to promote border security. Yet the reach of the order goes well beyond issues relating to deportation. It raises the central questions: Who decides who appears to be present in the United States without lawful immigration status, and on what basis?

More recently, certain lawmakers have employed the rhetoric of border control to justify busing or flying migrants to locations inside the United States. Texas Governor Greg Abbott (R) tweeted at the time: “We’re sending migrants to [Vice President Kamala Harris’s] backyard to call on the Biden Administration to do its job & secure the border.” Florida Governor Ron DeSantis (R) employed similar rhetoric to justify sending approximately 50 adults and children to Martha’s Vineyard without any apparent prior notice. This relocation may have violated criminal laws. The individuals who were relocated may have been given false information to induce them to board planes. Lawmakers who frame these relocations as a means of border control make the unjustified assumption that the targeted individuals had no claims to remain in the United States. This approach not only ignores laws permitting people to seek asylum but also treats certain U.S. residents as lacking basic civil liberties inside the United States. When government officials claim the ability to lure people from one state to another on false pretenses, they also claim virtually unlimited power to intrude on individual liberty in stated service of immigration control.

. . . .

In a variety of settings, ranging from politically motivated relocations of migrant communities to jailhouse immigration screenings, lawmakers present actions that curtail civil liberties as related to deportation. But a deportation-centric perspective, which centers whether and how certain practices might lead to removal, offers too limited a lens to understand the reach and impact of enforcement practices done in stated service of immigration control. It ignores the full costs of enforcement, including unjustified surveillance and policing. Rather than protecting the polity from a foreign threat, government actions purportedly aimed at immigration control undermine core liberties that ought to be protected within the American political community. If the ultimate aim of immigration law is to create an integrated political community, then we need to consider how law could operate to promote integration and inclusion, rather than treating all enforcement actions as a means to deportation.

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

Read the complete article of the link.

This is why it’s such a disgraceful mistake for Garland and the Biden Administration to allow the racially-charged, anti-due-process travesty at EOIR to continue, largely unabated! The misguided idea that migrants are not “real persons” under the Constitution — and to a large extent the related view that their lawyers aren’t entitled to the common professional treatment and courtesies extended in most other parts of our legal system — definitely has “carryover” into the dehumanization of various categories of the “other” and ignoring the compelling evidence of abuse amassed by those lawyers working to keep the system honest.

For example, the Supreme’s dismissive treatment of women’s rights and humanity is definitely related to the degrading treatment of women’s claims in Immigration Court — an overt misogyny encouraged by Sessions, Miller, and their nativist acolytes! That Democrats as a whole have failed to “pick up” on the serious attacks on equal justice and due process in Immigration Courts and their carryover effect to other parts of our legal system is a bad sign for the future of American democracy. Once a “person” is treated as “less than a full person” under the Constitution, there is no limit to who can become a “legal nonperson.”

🇺🇸 Due Process Forever!

PWS

10-10-22

⚖️ 👨🏻‍⚖️ THE LEVIN REPORT: AS FEALTY TO GOP’S OUT OF TOUCH EXTREME RIGHT AGENDA ROBS SUPREMES OF CREDIBILITY, ALITO BLAMES JUSTICE KAGAN FOR STATING THE OBVIOUS!

Bess Levin writes:

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As recent polls have shown, Americans’ confidence in the Supreme Court is at an all-time low, which presumably has something to do with the decision by the Court’s conservatives to inflict their medieval ideas about bodily autonomy on the country and end the national right to an abortion in June. Might it also have something to do with one of the justice’s spouses reportedly attempting to overturn the 2020 election and another securing his lifetime appointment without actually being properly vetted by the FBI? Yes, sure. But the biggie is no doubt the overturning of Roe v. Wade. (No, really: You don’t have to be a constitutional law expert to figure this out, seeing as a majority of Americans think abortion should be legal in all or most instances.)

Justice Elena Kagan—who happens to be one of the few people on the Court who doesn’t believe half of the population should be treated like second-class citizens—recently pointed this out. At a July judicial conference in Big Sky, Montana, she told an audience: “If, over time, the Court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.” Earlier this month, while speaking on a panel at Northwestern University’s Pritzker School of Law, she declared that a court is legitimate “when it’s acting like a court,” and that it’s a problem when justices attempt to impose their personal preferences on society. And last week, she made similar remarks at Salve Regina University in Newport, Rhode Island, saying that throughout the Court’s history, “The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions. The thing that builds up reservoirs of public confidence is the Court acting like a court and not acting like an extension of the political process.”

Kagan’s comments don’t appear to be sitting very well with certain male justices. As Chief Justice John Roberts told a judicial conference in Colorado Springs, “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the Court.” But it was Samuel Alito’s response that was the most creepy, given the very clear problem he has has with women.

In a comment to The Wall Street Journal, the archconservative said: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the Court is becoming an illegitimate institution or questioning our integrity crosses an important line.” In other words, he wants Elena Kagan to shut her liberal mouth, which is not only some anti-free-speech bullshit but a convenient way for him to ignore the fact that he shares a large portion of the blame for the widely held view that the Court has no integrity.

Unfortunately, Alito’s comment to the Journal shouldn’t surprise many people who’ve kept up with his work. Not only did he author the opinion overturning Roe v. Wade in June, but he gleefully noted that his inspiration for doing so was a 17th-century English jurist who supported marital rape and had women executed for witchcraft. Later, after a 10-year-old rape victim was denied an abortion in her home state, Alito was doing comedy routines about taking away a pregnant person’s right to choose.

Of course, let’s not forget the other justice who’s done his part to erode confidence in the Supreme Court

. . . .

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

Trial By Ordeal — Alito’s brand of “justice” harkens back to glorious days of yore when all-male judges had a range of methods for dealing with uppity women who thought they were entitled to control their own bodies and lives! — Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Read the rest of The Levin Report and subscribe at the above links.

Yesterday, new Justice Ketanji Brown Jackson was invested. As I’ve observed before, after the niceties and handshakes, her right wing extremist GOP colleagues will return to their chambers and continue to plot ways to bend and distort the law to dehumanize, disenfranchise, and demean Justice Brown Jackson, others like her, and all of the genuine American values she represents.

Lawrence Tribe’s tweeted critique of Alito’s disingenuous nonsense (see, full article) is “spot on:” “It’s politically agenda-driven decisions that cross the line by eroding the Court’s legitimacy.”

🇺🇸Due Process Forever!

PWS

10-01-22

🏴‍☠️🤯👎🏽 CRUMBLING INSTITUTIONS: OF COURSE THE OUT OF TOUCH, POLITICIZED SUPREMES’ GOP MAJORITY IS SHEDDING LEGITIMACY AS THEY IMPLEMENT AN EXTREME FAR-RIGHT POLITICAL AGENDA WITHOUT LEGAL BASIS! — C.J. Roberts’s Incredibly Lame Claim Otherwise Proves It!

Every time a GOP politico or media sycophant preferences remarks with “I’m not a racist,” you know that some outrageous racist statement is about to follow. What they are doing is dishonestly attempting to preemptively “shift the blame and focus” to those who call out their vile, dishonest conduct!

Over the weekend, Chief Justice John Roberts, drifted down a similar discredited path of disingenuous “preemptive denial.” In a ludicrously tone deaf statement that echoed Tricky Dick’s “I’m not a crook” speech, Roberts lamely attempted to defend the legitimacy of his Court’s stripping of fundamental human rights from women. In doing so, he basically reinforced critics’ points about the Court’s illegitimate, extralegal, right-wing, political war on individual and human rights with a good bit of misogyny thrown in!

Richard Nixon — Nixon’s “I’m not a crook speech” convinced many that he was, indeed, a crook. Roberts’s “My Court isn’t illegitimate just because it advances a far-right political agenda speech” is heading in the same direction!
PHOTO: Twitter

Never mind that the Court basically aligned itself with authoritarian theocrats promoting “forced birth” and overt subjugation of a woman’s fundamental right to decide whether or not to reproduce. Indeed, advancing that minority political agenda was the fundamental reason why Roberts and his GOP crew are on the Court in the first place! To pretend otherwise is off the wall!

There are some strong moral, societal, economic, and medical arguments to be made about why women should or should not choose to have children. Under the First Amendment, both those who favor abortion and those who oppose it have always been free to argue their points.

But, the idea that these choices should be removed from those directly concerned and placed in the hands of political and religious authorities is preposterous. Lacking convincing arguments to persuade all women facing that choice to their side, the far right theocracy did a preemptive strike! And, their “wholly-owned Justices” went along!

Needless to say, Roberts’s insultingly disingenuous defense of the indefensible did not fare well with informed critics.

Former Sen. Claire McCaskill, now an MSNBC analyist, On Meet the Press:

On Sunday, McCaskill – an MSNBC political analyst – tore into Roberts for taking the country backward and recalled that the jurists who signed onto Alito’s originalist rationalization misled the public during their respective Senate confirmation hearings.

“He’s so so out of touch. I mean really, this interview shows why the numbers for the Supreme Court are so bad. For him to say something like that, he just doesn’t get it. You don’t take away a right that’s been around for 50 years and you don’t have a party go to extremes of trying to make sure rape victims have to have forced birth,” McCaskill said.

“You don’t do that and not have it splash back on the Supreme Court,” she continued. “And they all said they respected precedent when they were confirmed. I heard them. America heard them. Clearly, they didn’t, and you can feel me getting angry at John Roberts right now because he knows better when he says that stuff.”

Professor (and former prosecutor) Joyce White Vance, Professor Leah Litman, Professor Stephen I. Vladeck, Political Scientist Norman Ornstein:

https://www.alternet.org/2022/09/claire-mccaskill-john-roberts-roe/

“Roberts’s failure to understand why the court has lost credibility with so many Americans smacks of ‘Let them eat cake,’ ” Joyce White Vance, a former prosecutor and a distinguished professor of the practice of law at the University of Alabama law school, told me. “The Supreme Court has a proud history of defending our rights, not taking them away. The Roberts court will go down in history as the first one” to strip away people’s rights.

University of Michigan law professor Leah Litman said: “I would be embarrassed to say something that naive and divorced from reality if I had said it as a first-year law student. For the chief justice to say it is just an insult to the intellect of everyone who knows anything about the court, American democracy and politics.”

. . .

If Roberts and the conservative bloc were to engage in just a tiny amount of self-reflection, they would understand that their own actions have brought them to this point. Law professor Stephen I. Vladeck, of the University of Texas school of law, asked me rhetorically: “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?”

While Roberts might not have written the most egregious opinions, he has joined in them, from the abortion ruling in Dobbs, to the prayer-in-schools ruling in Bremerton, to a Brnovich decision on voting rights, written by Alito, that “blatantly ignored the plain language of the law and rewrote it to fit his partisan and ideological views,” as political scientist Norman Ornstein told me. Moreover, Ornstein said, it is Roberts who has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

He concluded: “John G. Roberts Jr. is far from the worst justice undermining the fundamental legitimacy of the court, but he is surely culpable.”

https://www.washingtonpost.com/opinions/2022/09/12/roberts-criticism-supreme-court-whining/

Jennifer Rubin, WashPost opinion writer:

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

https://www.washingtonpost.com/opinions/2022/09/12/roberts-criticism-supreme-court-whining/

Eric Lutz in Vanity Fair:

But it’s not just the outcome, which decimated a right Americans had held for five decades and put a variety of other privacy rights in jeopardy. It’s the way that decision — and others on guns, climate change, and religion — recently came to pass.

https://www.vanityfair.com/news/2022/09/john-roberts-defends-supreme-court-against-legitimacy-questions

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

In this case, Roberts would have done better to confine himself to “calling balls and strikes.” Sadly, he and his GOP colleagues have gotten out from behind the plate and taken the field in their “Federalist Society” uniforms. He’s going to have to learn to live with objections and catcalls from those in the stands who see what’s really going on here and are understandably upset about the Court’s overreach, substandard legal performance, lack of accountability, absence of self-awareness, and, yes, lack of legitimacy.

Better judges for a better, fairer America — from the Immigration Courts to the Supremes!

By the way, we can’t change the Supremes overnight. But, Biden, Harris, & Garland COULD have reformed, repaired, and legitimized the Immigration Courts, including the BIA, that they control. That they have failed to do so is the biggest “unforced error” of the Biden Administration — one that will haunt Democrats and Americans for ages!

Every day Garland’s parody of a court system, still largely bearing the unmistakable stamp of White Nationalists Sessions, Barr and Miller, continues to run roughshod over individual rights, often in life or death cases, while degrading the judicial process. Misogyny and racism are also on full display, as a disproportionate brunt of their unprofessional, wrong-headed, result-oriented “any reason to deny” decision-making falls on refugee women of color (and often on their accompanying children).

There is a very direct connection between “DHS agents in robes” in our Immigration Courts and “right-wing politicos in robes” at the Supremes. Part of the idea is to “normalize” injustice directed at “the other” — just so long as YOUR life isn’t directly affected, who cares? It’s also known as “Dred Scottification.” It’s the “polar opposite” of Dr. Martin Luther King’s observation that “injustice anywhere is a threat to justice everywhere.” If Dems don’t “connect the dots,” they might not be able to save our democracy!

🇺🇸 Due Process Forever!

PWS

09-12-22.

🇺🇸🗽IN COMPETITIVE MICH 3RD, FORMER BIA ATTORNEY HILLARY SCHOLTEN REACHES VOTERS WITH VALUES-BASED CAMPAIGN FOCUSING ON LISTENING, SOLVING PROBLEMS, ADDRESSING LOCAL ISSUES, & PROTECTING INDIVIDUAL LIBERTIES! — Lissandra Villa Huerta @ BoGlo Reports!

Lissandra Villa Huerta
National Political Reporter
Boston Globe
PHOTO: BoGlo Website

https://www.bostonglobe.com/2022/08/27/nation/democrats-michigan-hope-capitalize-swell-support-abortion-rights/

GRAND RAPIDS, Mich. — Hillary Scholten, a 40-year-old Democratic congressional hopeful, only had to knock on a handful of doors last Saturday in a residential neighborhood here before she encountered Maria D’Angelo, who was sitting on her front porch, about to have coffee with her neighbor, Sara VanderArk.

Both women in the historically conservative but now Democratic-leaning district are overwhelmingly focused on a single issue this November: women’s rights.

“I’ve had to voice publicly and to family members that I never intended to tell that I’ve had abortions,” D’Angelo, a Democrat, told the Globe about the fallout from the Supreme Court’s June decision to overturn Roe v. Wade. VanderArk, who identifies as an independent, said she was inspired by the court ruling to join abortion rights protests and that her vote would largely hinge on the issue in the fall.

They are exactly the type of galvanized voters that Democratic candidates up and down the ballot in Michigan and across the country are hoping will give them a boost in the November midterm elections. Midterm years are historically bad news for the president’s party even without high inflation and sagging presidential approval ratings, but Democrats now are nursing a sliver of hope: They’re narrowing the enthusiasm gap — the motivation level of voters — and popular opinion on the issue of abortion is on their side.

That’s especially true in Michigan, a battleground state where, like Kansas before it, there has been a surge in the number of women who’ve registered to vote since Roe v. Wade was overturned in June after almost 50 years as settled precedent, according to an analysis by TargetSmart, a Democratic data firm. A recent poll commissioned by AARP, the interest group for older Americans, showed the issue was among voters’ top concerns. And Michigan’s new third congressional district, where Scholten is running, is a rare congressional race where Democrats aren’t just having to focus on defending their turf, they feel bullish about their odds of flipping the seat.

“The level of engagement on this issue is just so high,” Scholten told the Globe in an interview at her campaign office last weekend. “It’s the only thing I hear about. Women stop me in the grocery store and grab my arms and are like, please do something about this.”

Scholten, an attorney and former Department of Justice official, said she saw a surge of volunteers, fund-raising, and willingness of voters to answer doors and talk to her after the Dobbs decision.

This may sound strange in a district that has historically voted Republican. Its congressman is Republican Peter Meijer, a scion of a Midwest grocery store dynasty, and its voters have backed Republicans in the last three presidential elections. But the district’s newly drawn boundaries that are in place for the first time this election cycle make it significantly friendlier to Democrats. Since Meijer, who was one of just 10 House Republicans to vote to impeach former President Trump, lost his primary to his more right-wing and anti-abortion opponent John Gibbs, Democrats hope to motivate the more Democratic-leaning voters in Grand Rapids and its suburbs who are now part of the district and are mad as hell about the abortion rights repeal.

“Everywhere around the state, when we knock on doors, people bring up abortion — it’s not a negative anywhere,” said Michigan state Senator Winnie Brinks. “People used to be pro-choice, but they were quiet about it. Now they’re not quiet about it. They’re like, ‘Nope, this is on the line, we’re gonna talk about it.’”

That was clear in interviews with voters in downtown Grand Rapids for the city’s “3rd Thursdays,” where residents congregate for live music and can go into the city’s art museum for free courtesy of the Meijer Foundation. It was clear in interviews on the other end of the district on the shore of Lake Michigan, where voters strolled watching the sun set over the lake on a Friday night. And it was clear in the views expressed by voters Scholten met knocking on doors.

“I will for sure be there to vote,” said Erica Kochaney, a Democrat and Grand Rapids resident who was at Grand Haven State Park on Friday evening. Reproductive freedom “is my number one reason for getting out there for sure.”

On the Scholten-Gibbs race and the issue of abortion, she added, “I know where she stands on it, and I’m fine, and I feel like I know where he stands on it, and I’m not fine with it.”

. . . .

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

Read the rest of Lissandra’s coverage at the link.

A “home grown daughter” of her Michigan District, Hillary is an experienced, resilient, courageous, values-based problem solver committed to making Government work for the common good rather than infringing on individual liberties, invading bedrooms and doctors’ offices, banning books, interfering with elections, and “dumbing down” education.

She is also a highly successful working parent who knows that the same teamwork, caring, creativity, and unselfishness that goes into the challenges of raising a family also can apply on a larger scale to American society. She knows that problems like inflation, infrastructure, climate change, health, safety, and education affect all Americans, regardless of party affiliation.

As a DOJ attorney working in one of the most fractured areas of American law and public policy, Hillary has seen first hand what works and what doesn’t work in today’s Government. She knows that “same old, same old” won’t get the job done for 21st Century America! She seeks a better America — for all Americans, regardless of race, color, creed, gender, or status.

Several weeks ago I wrote about under-appreciated American “good government hero” Frances Perkins, our first female cabinet secretary, appointed by FDR. https://immigrationcourtside.com/2022/08/14/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%a6%b8%f0%9f%8f%bb%e2%99%80%ef%b8%8f%f0%9f%8e%96-a-true-american-hero-gets-her-due-frances-perkins-was-the-mother-of-americas-safety-net/

Perkins was driven by her life experiences and values, yet courageously and effectively “worked the system” (then basically an “Old Boys’ Club”) to achieve successes and innovations that have shaped our nation for generations (Social Security is just one of her achievements). Hillary Scholten embodies qualities that made Perkins a successful leader who made life better for all Americans!

No one legislator can do it all. But if anyone can bring fact-based legislating, the hopes, fears, and positive values of people in the heartland, and informed debate to our national legislative process, it’s Hillary and other “practical problem solvers” like her! Values, progress, innovation, and humanity over political expediency — that’s Hillary! She is a good listener and team-builder — willing and able to find common ground with those who might not share all her views.

I know Hillary as an unusual combination of intellectual and moral toughness with kindness, compassion, humanity, and common sense. She’s one of the nicest people you’d ever want to meet — makes you want to be on her team! She gets things done by inspiring others, not by threatening , demeaning, or excluding them!

The good folks of Mich 3 have a chance to do something really great — for their own district and for the future of America — by sending Hillary to Washington! We need you, Hillary, now more than ever!

🇺🇸 Due Process Forever!

PWS

09-06-22

⚒️👩🏾‍🌾🌾🇺🇸🗽 AN INSPIRING LABOR DAY MESSAGE FROM REV. CRAIG MOUSIN: Migrants Are The Backbone Of America & Those Who Fight For Migrant Justice Are Not Alone — A Special Podcast With Links To Music By John McCutcheon & Emma’s Revolution!

Dear Paul,

As we begin Labor Day weekend, I give thanks for the many ways your work and mission seek justice for all.

My latest podcast gives thanks to all of you who have worked to end Title 42 and to all those immigrants who have contributed to the common good.

As I end the podcast quoting Emma’s Revolution’s song, Bound for Freedom, I give thanks that we are not alone, but united in the struggle. Thank you.

https://blogs.depaul.edu/dmm/2022/09/02/lawful-assembly-podcast-episode-29-gratitude-for-those-who-labor-and-those-who-have-labored/

Have a great Labor Day weekend and Thank You.

Peace,

Craig

Rev. Craig B. Mousin

DePaul University

(mail) 1 East Jackson Boulevard

Chicago, Illinois 60604

(office) Suite 800H

14E. Jackson Blvd.

Chicago, Illinois 60604

312-362-8707 (voice)

312-362-5706 (confidential fax)

You can find some of my publications at either:

https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=667812or

https://works.bepress.com/craig_mousin/

You can find my digital story at:https://www.youtube.com/watch?v=c9VTkjhzIcI

You can follow the podcast Lawful Assembly at:https://lawfulassembly.buzzsprout.com

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

Thanks, Craig, for your “practical activism and scholarship!”

Takeaways:

Grass roots activism works to defeat the forces of darkness and White Nationalism (the defeat of the barrage of White Nationalist immigration amendments was covered on Courtside here: https://immigrationcourtside.com/2022/08/08/%f0%9f%87%ba%f0%9f%87%b8%f0%9f%97%bd%e2%9a%96%ef%b8%8fndpa-activists-help-beat-back-gop-nativist-spoiler-amendments-to-reconciliation-bill-dems-need-to-win-midterms-to-thwart-newest-gop-immi/);
The John McCutcheon version of Woodie Guthrie’s song “Deportees” shows how deeply ingrained “Dred Scottification” is in our country’s often unconstitutional, impractical, and sometimes immoral approach to immigration enforcement.“De-personification” of “the other’” — treating them as numbers, statistics, even “beds” or “apps” without names, faces or rights — and making up vile myths and lies about them, all while exploiting their labor — is still at the heart of the anti-American White Nationalist agenda!
Social justice activism is an important multi-disciplinary endeavor — here we see how law, education, religion, civics, history, broadcast journalism, performance art, music, technology, political science, economics, language, culture, & communication all work together to thwart hate and lies;
More undergraduate institutions need to be making these links and insisting that the true history of American Immigration — with all its triumphs and warts — becomes a staple of education;
Many of those tone-deaf (or worse) politicos pushing the far right agenda of hate, lies, and racism reflected in the defeated amendments are elitists masquerading as “bogus populists” who got the benefit of education at some of the top law schools and universities in the nation. Whatever happened to the teaching of basic legal ethics and responsibilities to society? The Jim Crow agendas of today differ little from those of the pre-civil rights era of the 20th Century. These are NOT debates between legitimate “differing viewpoints,” but essentially questions of truth vs. lies, hate v. tolerance, integration v. exploitation;
The White Nationalist Right is taking over school boards and local governance in the false name of “parents’ rights” — actually meaning the rights of far right parents to impose their minority religious doctrines and false social doctrines on others. The fight for social justice begins at the local level where where teaching of truth and legitimate debates are being drowned out by disgruntled, anti-democracy, empowered White Nationalist theocrats who claim they want liberty but actually are trying to impose autocracy and minority rule;
The fight for social justice never ends!

🇺🇸 Happy Labor Day, & Due Process Forever!

PWS

09-05-22

⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️

Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

From Dan:

Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)

https://www.ca5.uscourts.gov/opinions/unpub/19/19-60425.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/another-ca5-pereira-niz-chavez-remand-parada-v-garland#

“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. … [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”

[Yet another victory for Superlitigator Raed Gonzalez! Who else could persuade CA5 to agree with CA9, and get an award of costs?]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Male Superhero — Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America!
PHOTO: Creative Commons

Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit!

Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!

Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases? I like the fee award but I doubt that it has much impact on their behavior.”

I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!

If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary.

The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!

Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?

The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination.

How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?

By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!

One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!

Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!

It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!

Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights, and racial justice at DOJ!

I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!

It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”

🇺🇸 Due Process Forever!

PWS

09-03-22

🏴‍☠️CRISTIAN FARIAS @ VANITY FAIR: WHAT HAPPENS WHEN A MAJORITY OF A DEMOCRACY’S TOP JUDGES NO LONGER BELIEVE IN DEMOCRACY & ARE UNWILLING TO DEFEND IT?☠️

https://www.vanityfair.com/news/2022/08/post-roe-scotus-is-on-a-collision-course-with-democracy

After destabilizing the nation over abortion, and moving further right on guns, climate, and religion, the conservative justices’ sights are on affirmative action, voting rights, and a fringe legal theory that could empower Trump-friendly state legislatures for future elections.

BY CRISTIAN FARIAS

AUGUST 25, 2022

On the eve of his retirement, the nation’s first Black justice and constitutional giant, Thurgood Marshall, took a moment to denounce the Supreme Court of the United States over its “radical” path of abandoning past decisions for no other reason than the court’s membership had changed. Owing to these shifts in personnel, Marshall charged, now “scores of established constitutional liberties” hung in the balance, the powerless were left defenseless, and the court’s own authority and legitimacy were diminished. “Power, not reason, is the new currency of this Court’s decisionmaking,” Marshall warned in 1991, in what turned out to be his final dissenting opinion.

The dissenting justices in Dobbs v. Jackson Women’s Health Organization, the watershed case that discarded nearly 50 years of American jurisprudence protecting a woman’s right to terminate a pregnancy, felt the need to quote from Marshall’s decades-old warning because power, indeed, is the only sensible explanation for the Supreme Court’s present course. The seismic end of Roe v. Wade and Planned Parenthood v. Casey, two pillars of a much larger structure of unenumerated constitutional rights the high court has erected over almost a century, was neither legally necessary nor a product of profound changes in American society. Instead, five justices tore these precedents off the law books, ushering in a new era of abortion criminalization and second-class citizenship for half the nation, simply because they could—and had the numbers to do so. “Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did,” wrote Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in their anguished Dobbs dissent. “All that has changed is this Court.”

As radical and destabilizing as the fall of Roe is for our most intimate personal decisions, beyond just abortion rights, its ripples will extend to other areas where the conservative justices are already smelling blood. Not satisfied with the erasure of just one constitutional right, Clarence Thomas, writing separately in Dobbs, indicated that contraception and same-sex marriage could be next. That future begins now. These actions and other signals make abundantly clear what Marshall foresaw: The Supreme Court is on a collision course with democracy itself. Dobbs merely sets the stage.

Every new justice creates a new court, the maxim goes. Yet for much of their time on the bench, Justice Samuel Alito, long a soldier in the Republican holy war to curtail abortion rights, and Thomas, an avowed Roe antagonist, had the will but not the votes to impose their antiabortion vision on the majority of the Supreme Court, much less on the rest of the country. Their fortunes, and power, changed with the election of Donald Trump, whose own marriage of convenience with white evangelicals and social conservatives paved the way for his presidency and the installation of three new justices of a different mold, all of them more extreme and lacking the moderation of Republican appointees of the past, including those who made Roe and Casey possible.

Next to this “restless and newly constituted Court,” as Sotomayor branded this new majority in June, Chief Justice John Roberts looks as weakened as ever. The Supreme Court may bear his name, and the chief may have come of age during the abortion wars of the 1980s and ’90s, but neither his title nor institutionalist bent could convince the reactionaries to his right that their power grab in Dobbs represented “a serious jolt to the legal system” that he simply could not join in full. Too much, too soon. To the Trump justices, plus Thomas and Alito, this shock to the nation could not come soon enough.

Nominated by a president who lost the popular vote and narrowly confirmed by a Senate plagued by minority rule, these justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were all groomed for this moment. All of them were grown in the test tube of the Federalist Society, the conservative legal brain trust that for decades has been a judicial pipeline for Republican administrations and state governments, which since the time of Ronald Reagan have made the fall of Roe a white whale of their politics.

. . . .

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

Read the rest of the article at the link.

Cristian creates an interesting vignette. The Justices take a few minutes to gather to welcome Justice Ketanji Brown Jackson to the Court. Then, the Right Wing Majority goes to work ignoring her views, insuring her marginalization, and pushing a minority agenda drawing into question her very existence as a person under law.

The conclusion of the article is perhaps most illustrative of the uncertain future of democracy, human rights, equal justice, and indeed basic human decency:

“Women are not without electoral or political power,” wrote without irony the five justices who ended their right to be full and equal citizens before the law in Dobbs. In asserting power rather than reason over what remains of our less than perfect union, the Supreme Court may well unravel democracy with it, taking us down a path from which there is no return.

Quite an achievement for a Court now dominated by those appointed by Presidents whose election (initial or sole) contravened the will of the majority of voters.

“Better Judges for a Better America!” Why not start with your “wholly owned and operated” Immigration Courts, Merrick Garland?

🇺🇸Due Process Forever!

PWS

08-29-22

More from today’s WashPost on the threat to our democracy posed by the anti-democracy, scofflaw GOP and their right wing judges:

William Webster and William Cohen on how today’s MAGA-infested GOP has become a cult of the lawless: https://www.washingtonpost.com/opinions/2022/08/26/mar-a-lago-fbi-attacks-lawless-gop/

E.J. Dionne on how the “off the rails, far right” GOP Supremes’ majority threatens humanity’s future with their anti-scientific, anti-government, anti-truth far right agenda: https://www.washingtonpost.com/opinions/2022/08/28/west-virginia-epa-inflation-reduction-act/

Jennifer Rubin on how one distinguished Senior U.S. District Judge, a Clinton appointee, stood up to the GOP’s anti-abortion overreach: https://www.washingtonpost.com/opinions/2022/08/28/federal-judge-pushback-idaho-abortion-ban/

💨 FROM THE ROCKIES & THE HIGH PLAINS, THE WINDS OF TRUTH BLOW AWAY THE BS & SHOW HOW GARLAND’S BIA & THEIR SCOFFLAW INTERPRETATIONS HAVE BUILT BACKLOGS — “This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in,” says 10th Cir. in Estrada-Corona v. Garland!

Kangaroos — It’s easy guys, we just do what DHS Enforcement and our political bosses want and we can keep hopping around forever! Backlogs! Ha, the bigger the bigger they get, the more “secure” our jobs!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

Estrada-Cardona v. Garland

“The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. … This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in. … After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong. … Because Congress unambiguously replaced the final-order rule with the stop-time rule, the BIA’s application of the final-order rule was legal error. Petitioner continued to accrue continuous physical presence after the immigration judge issued the order to voluntarily depart. … [W]e hold that because the BIA seems to have considered change-in-the-law equitable tolling arguments before, the BIA abused its discretion in this case by failing to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” … We cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion. … On remand, the Government is free to argue that Petitioner should not be granted sua sponte reopening or equitable tolling. This opinion is expressly limited to two conclusions. First, the BIA’s application of the final-order rule was legal error. Second, the BIA’s explanations for denying sua sponte reopening and equitable tolling constituted, as a procedural matter, an abuse of discretion. For the reasons stated herein, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion.”

[Hats way off to Jennifer M. Smith and Mark Barr!]

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

“For years, if not decades, the Government sent aliens “notices to appear” which failed to include all the information required by § 1229(a)—like the “time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). For countless aliens, the only obstacle to being eligible for cancellation of removal was the Government’s position that a time-and-place-to-be-set notice to appear still triggers the stop-time rule. In Pereira, the Supreme Court rejected the Government’s atextual interpretation and held a “putative notice to appear that fails to designate the specific time or place of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. In one fell swoop, the Supreme Court cleared the way for many aliens, like Petitioner, to seek cancellation of removal.

But the Government quickly erected a new hurdle.”

The BIA could and should have prevented this debacle by insisting from the git go that the statute (“the law”) be followed by DHS and EOIR. Instead, at the behest of DHS, and perhaps to prevent tens of thousands of long-term residents who had received statutorily defective notices from seeking relief, the BIA misinterpreted the statute time after time.

The real stupidity here is that the requirement the BIA was pretzeling itself to avoid was hardly “rocket science” or burdensome: Serve a notice containing the actual date, time, and place of the hearing! One might ask what purpose is served by a so-called “Notice to Appear” that doesn’t notify the individual of where and when to appear?

Moreover, when the BIA started issuing their incorrect precedents, DHS and EOIR had a then-existing system — called “interactive scheduling” — that would have complied with the statute. The problem was that the “powers that be” at DOJ, EOIR, and DHS consciously decided NOT to use that system.

The apparent reason was the belief that complying with the law might have interfered with DHS arbitrarily filling the Immigration Courts with large “numbers” of cases to meet various enforcement “priorities” set from “on high.” Rather than doing its job, the BIA chose time and again to “go along to get along” with this nonsense!

Over and over, EOIR lets bogus DHS or Administration “enforcement priorities” or “improperly using the legal system as a deterrent” subvert due process, fundamental fairness, best interpretations, and practical solutions!

And, although Biden and Harris campaigned on a platform of bringing the rule of law and rationality back to immigration, the absurdity and illegality continues under Garland. He even sent OIL in to waste the time of the Article IIIs by mounting essentially frivolous defenses to the BIA’s malfeasance.

Perhaps worst of all, in addition to being denied timely justice, individuals and their lawyers dealing with Garland’s dysfunctional EOIR often are falsely blamed for causing the backlogs that are the primary result of DHS/EOIR incompetence and political meddling by unqualified bureaucrats. The latter don’t understand what really happens in Immigration Court and how to properly, fairly, and efficiently administer such a large and important court system.

The backlogs will continue to grow and the US justice system will crater because of bad immigration decisions generating skyrocketing litigation. Garland must replace the BIA with real expert appellate judges committed to fair, humane, and reasonable interpretations of immigration and human rights laws — without regard to whether those correct interpretations will be “career enhancing” or “career preserving.” In other words, judges who put justice before personal or institutional “survival.” Competent, expert, independent-minded judicial administrators with the guts to keep DOJ and DHS bureaucratic meddlers “at arm’s length” are also required.

Folks who could do the job are out here. But, that’s the problem! They belong in the key judicial judicial and administrative positions at EOIR where they can put any end to the due-process denying, backlog building dysfunction.

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Everyone committed to the future of American justice should be asking themselves why Garland hasn’t recruited and hired the right “Team Due Process” for EOIR! American justice can’t afford more of Garland’s inept, “go along to get along,” “afraid to say no to DHS enforcement” BIA and the rest of the EOIR “Deadly Clown Show” largely left over from past, failed Administrations!

🇺🇸 Due Process Forever!

PWS

08-20-21

📖COURTSIDE HISTORY: BEYOND THE CHINESE EXCLUSION ACT, RACISM IS AT THE CORE OF U.S. IMMIGRATION POLICY — Professor Andrew S. Rosenberg Interviewed On New Book By Isabela Dias @ Mother Jones!

Isabela Dias
Staff Writer, Immigration & Social Issues
Mother Jones
PHOTO: Twitter

https://apple.news/AOMcfZiMFQ0OSgozcppDcjg

“Undesirable Immigrants: Why Racism Persists in International Migration”

. . . .

In the book, you dispute the assumption that the right to border control and to exclude foreigners is an inherent feature of sovereign states. Instead, you frame it as a “modern consequence of racism.” Why do you see it that way?

The nation-state is a relatively modern invention on the scale of human history. Today, we have this conventional wisdom floating around that it is the natural right and duty of nation-states as sovereign entities to be able to restrict foreigners and have these really hard borders—and that it’s that ability that makes a state what it is. Actually, if you go back in time and look at the international legal thought that emerged from the 15th through the 19th centuries on what it actually means to be a state, the commonly held assumption that people like the late Justice [Antonin] Scalia and others talk about, is actually an invention of the 19th century. In the 16th and 17th centuries, the great thinkers of international legal jurisprudence or of state theory either thought that states had a right or an obligation to be hospitable to foreigners and to allow them free passage into their territory or, at most, it was up for raucous debate. It was only in the 19th century, when immigrant-receiving countries like the United States began receiving a large influx of racially different outsiders like the Chinese, that this presumption that sovereign states have a right and an obligation that can be tied back to their status as sovereign states to restrict outsiders emerged.

People like Texas Governor Greg Abbott seem to invoke that supposed inherent right when they describe migrants at the border as an “invasion.”

Precisely. These types of “declarations of war” are one of the clearest examples of this ideology seeping into public debate, which leads everyday people to create this idea that migrants are undesirable outsiders who are not fit for, or are undeserving of reaping the benefits of living in the United States or participating in our society.

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

Read the complete interview at the link.

The myth of the “undesirable immigrant” — at the heart of the anti-immigrant rabble rousing of Trump, Miller, Bannon, DeSantis, Abbott, Cotton, Hawley, etc. — has deep roots in American racial history.

I’ve said it many times: There will be neither racial justice nor equal justice for all without justice for immigrants (regardless of status). Laws like the Refugee Act of 1980, that very explicitly make arrival status irrelevant to access to a fair legal process, have been intentionally misinterpreted and misapplied by right-wing judges from the Supremes all the way down to the Immigration Courts.

Advocates for civil rights, womens’ rights, LGBTQ+ rights, voting rights, disability rights, and other fundamental rights that have been unlawfully restricted or diminished, usually, but certainly not exclusively, by the right, who continue to ignore the primacy of dealing with the intentional unfair, racially biased treatment of migrants do so at their own peril!

🇺🇸 Due Process Forever!

PWS

08-12-22

⚖️🗽👩🏻‍⚖️Better judges for a better America!

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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Your friend & colleague, forever, ❤️

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Introduction and Summary of Argument

Read the complete brief here:

🇺🇸 Due Process Forever!

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Eisha Jain on Lawfare:

🇺🇸 Due Process Forever!

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Bess Levin writes:

🇺🇸Due Process Forever!

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Former Sen. Claire McCaskill, now an MSNBC analyist, On Meet the Press:

Professor (and former prosecutor) Joyce White Vance, Professor Leah Litman, Professor Stephen I. Vladeck, Political Scientist Norman Ornstein:

Jennifer Rubin, WashPost opinion writer:

Eric Lutz in Vanity Fair:

🇺🇸 Due Process Forever!

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Thanks, Craig, for your “practical activism and scholarship!”

🇺🇸 Happy Labor Day, & Due Process Forever!

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From Dan:

Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)

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🇺🇸Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

🇺🇸 Due Process Forever!

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“Undesirable Immigrants: Why Racism Persists in International Migration”

🇺🇸 Due Process Forever!

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