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🏴‍☠️BIA CONTINUES TO SPEW FORTH ERRORS IN LIFE OR DEATH ☠️ ASYLUM CASES, SAYS 4TH CIR. — “Three-In-One” — Improperly Disregarding Corroborating Evidence; Incorrect Legal Standard On Past Persecution; Wrong Nexus Finding! — Arita-Deras v. Wilkinson

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

Kangaroos — “Oh Boy! Three material mistakes in one asylum case! Do you think our superiors in the enforcement bureaucracy will give us extra credit on our ‘move ‘em out without due process quotas?’ Being a Deportation Judge sure is fun!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.ca4.uscourts.gov/opinions/191978.P.pdf

Arita-Deras v. Wilkinson, 4th Cir., 03-05-21, Published

PANEL: GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges

OPINION BY: Judge Barbara Milano Keenan

KEY QUOTE:

Maria Del Refugio Arita-Deras, a native and citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (the Board).1 The Board affirmed an immigration judge’s (IJ) conclusion that Arita-Deras was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The Board: (1) agreed with the IJ that Arita-Deras failed to support her claims with sufficient corroborating evidence; (2) found that Arita-Deras failed to prove that she suffered from past persecution because she had not been harmed physically; and (3) concluded that Arita-Deras failed to establish a nexus between the alleged persecution and a protected ground.

Upon our review, we conclude that the Board improperly discounted Arita-Deras’ corroborating evidence, applied an incorrect legal standard for determining past persecution, and erred in its nexus determination. Accordingly, we grant Arita-Deras’ petition and remand her case to the Board for further proceedings.

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

After eight years of bouncing around the system at various levels THIS “Not Quite Good Enough For Government Work” error-fest is what we get from EOIR! As I keep saying, no wonder they are running a 1.3 million case backlog, clogging the Circuit Courts with incredibly shoddy work, and in many cases sending vulnerable refugees back to death or torture under incorrect fact findings and blatantly wrong legal interpretations!

Again, nothing profound about this claim; just basic legal and analytical errors that often flow from the “think of any reason to deny” culture. EOIR just keeps repeating the same basic mistakes again and again even after being “outed” by the Circuits!

This case illustrates why the unrealistically high asylum denial numbers generated by the biased EOIR system and parroted by DHS should never be trusted. This respondent, appearing initially without a lawyer, was actually coerced by an Immigration Judge into accepting a “final order” of removal with a totally incorrect, inane, mis-statement of the law. “Haste makes waste,” shoddy, corner cutting procedures, judges deficient in asylum legal knowledge, and a stunning lack of commitment to due process and fundamental fairness are a burden to our justice system in addition to being a threat to the lives of individual asylum seekers.

Only when she got a lawyer prior to removal was this respondent able to get her case reopened for a full asylum hearing. Even then, the IJ and the BIA both totally screwed up the analysis and entered incorrect orders. Only because this respondent was fortunate enough to be assisted by one of the premier pro bono groups in America, the CAIR Coalition, was she able to get some semblance of justice on appeal to the Circuit Court!

I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!

Despite CAIR’s outstanding efforts, Ms. Arita-Deras still is nowhere near getting the relief to which she should be entitled under a proper application of the law by expert judges committed to due process. Instead, after eight years, she plunges back into EOIR’s 1.3 million case “never never land” where she might once again end up with Immigration Judges at both the trial and appellate level who are not qualified to be hearing asylum cases because they don’t know the law and they are “programmed to deny” to meet their “deportation quotas” in support of ICE Enforcement.

Focus on it folks! This is America; yet individuals on trial for their lives face a prosecutor and a “judge” who are on the same side! And, they are often forced to do it without a lawyer and without even understanding the complex proceedings going on around them! How is this justice? It isn’t! So why is it allowed to continue?

Also, let’s not forget that under the recently departed regime, EOIR falsely claimed that having an attorney didn’t make a difference in success rates for respondents. That’s poppycock! Actually, as the Vera Institute recently documented the success rate for represented respondents is an astounding 10X that of unrepresented individuals. In any functional system, that differential would be more than sufficient to establish a “prima facie” denial of due process any time an asylum seeker (particularly one in detention) is forced to proceed without representation.

🇺🇸⚖️🗽🧑🏽‍⚖️VERA INSTITUTE RECOMMENDS FEDERAL DEFENDER PROGRAM FOR IMMIGRANTS — Widespread Public Support For Representation In Immigration Court!

Yet, this miscarriage of justice occurs every day in Immigration Courts throughout America! Worse yet, EOIR and DHS have purposely “rigged” the system in various ways to impede and discourage effective representation.

To date, while flagging EOIR for numerous life-threatening errors, the Article IIIs have failed to come to grips with the obvious: The current EOIR system provides neither due process nor fundamental fairness to the individuals coming before these “courts” (that aren’t “courts” at all)!

Acting AG Wilkinson has piled up an impressive string of legal defeats in immigration matters in just a short time on the job. It’s going to be up to Judge Garland to finally make it right. It’s urgent for both our nation and the individuals whose rights are being stomped upon by a broken system on a daily basis!

🇺🇸⚖️🗽Due Process Forever! Failed Courts Never!

PWS

03–05-21

“ELECTIONS HAVE CONSEQUENCES” — Biden Administration Ends Trump’s Fruitless Campaign Against States & Cities — Dean Kevin Johnson With A Summary From ImmigrationProf Blog!

Kevin R. Johnson
Dean
UC Davis School of Law

https://lawprofessors.typepad.com/immigration/2021/03/justice-dept-asks-supreme-court-to-dismiss-sanctuary-immigration-suits.html

Elections truly do have consequences. The Biden administration in its early days has removed some high profile immigration cases from the Supreme Court docket, moving in a different direction than the Trump administration. NBC News reports (see also CNN and Bloomberg) that, yesterday, the Justice Department asked the Court to dismiss three lawsuits over the lawfulness of the Trump administration’s efforts to de-fund “sanctuary’ cities.

In brief letters to the Supreme Court, the Justice Department said the cases should be dismissed, indicating that the government will no longer seek to enforce that policy.

Lower courts were divided on the legality of the Trump de-funding policy. The Supreme Court had been deferring action on the appeals while the new administration decided how to handle the cases. The cases are Wilkinson v. San Francisco, 20-666; New York v. Department of Justice, 20-795; and City of New York v. Department of Justice, 20-796.

KJ

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

Thanks for the nice summary and links, Kevin!

The Trump regime waged a four-year unsuccessful war against American local governments who were seeking to protect their ethnic communities from ICE abuses and to encourage community cooperation with police in addressing violent crime in those communities. How did they go about it: By threatening to cut off certain Federal funding for local law enforcement.

If it sounds stupid and wasteful, that’s because it was. It also helped make ICE probably “the most despised law enforcement agency in America.” Again, not an effective strategy for real cooperative law enforcement.

But, despite all his bluster and false claims, Trump never, ever was about “law enforcement.” That was clear even before he sent his “magamorons” out to attack our Capitol. No, it always was about stoking fear, hate, and throwing “red meat” to his base for political purposes.

PWS

03-05-21

🇺🇸🗽NEW VISION: Biden Administration Reportedly Plans To Turn Gulags Into “Rapid Processing Centers!”

https://apple.news/A_66ulAuzRTeEZzT59d_vTw

Celine Castronuovo reports in The Hill:

The Department of Homeland Security (DHS) is reportedly drafting plans to transform family migrant detention centers in South Texas into screening hubs as the Biden administration faces a growing number of migrants at the southern border.

The Washington Post, which obtained internal DHS draft documents outlining the plans, reported Thursday that senior ICE official Russell Hott informed staff in an email this week that the number of unaccompanied minors and families arriving in the U.S. in 2021 is “expected to be the highest” recorded “in over 20 years.”

According to the Post, Hott added that with more than 500 family members arriving per day, the shift from detention to Ellis Island-style processing centers “may not be sufficient to keep pace with apprehensions,” with the potential for some migrants to be housed in hotels.

DHS officials, who spoke to the Post on the condition of anonymity because they were not authorized to speak publicly, said the transition to rapid processing and release centers has already begun.

The reported change comes as the latest move in President Biden’s efforts to reform the U.S. immigration system and keep up with the rising number of migrants crossing into the country amid shortages of bed space and personnel at detention centers.

The reported plans also mark a shift from policies under the Obama and Trump administrations, when most migrant families were quickly released or deported upon arriving in the U.S., with some being held in dormitory-style centers for extended periods of time as they awaited immigration proceedings.

The Biden administration has publicly said it is reviewing how family detention facilities are used, though the Post noted that the administration last week told a federal judge that the policies had not yet changed.

. . . .

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

Read the full article at the link.

The three keys are: 1) screening for COVID, background, and credible fear of persecution; 2) matching asylum applicants with representation, which promotes nearly “perfect attendance,” at hearings; 3) radically and rapidly reforming the Immigration Court system so that the Immigration Judges are “practical experts” on asylum law and eliminating the huge number of “deadwood” cases clogging dockets so Immigration Judges can conduct asylum hearings for recent arrivals on a timely, consistent, predictable basis, with an emphasis on due process and getting the result correct at the initial merits hearing.

🇺🇸⚖️🗽Due Process Forever!

PWS

03-05-21

🏴‍☠️PERSECUTED IN TWO COUNTRIES, SOMALIAN REFUGEE FEELS FULL BRUNT OF EOIR’S INCOMPETENCE 🤮 — Firm Resettlement, NGA Persecution, Past Persecution, Nexus, Misconstruction Of Regulations, Failure To Apply Circuit Precedent Among The “Comedy Of Errors” Inflicted By Imposters Masquerading As “Expert Judges” 🤡 — Aden v. Wilkinson, 9th Cir.

Aden v. Wilkinson, 9th Cir., 03-04-21, published

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/17-71313.pdf

PANEL: Before: Richard A. Paez and Johnnie B. Rawlinson,

Circuit Judges, and George H. Wu,** District Judge. Opinion by Judge Paez;

Concurrence by Judge Rawlinson

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.

SUMMARY BY COURT STAFF:

Immigration

Granting Abdi Ali Asis Aden’s petition for review of the Board of Immigration Appeals’ dismissal of his appeal of an Immigration Judge’s denial of his applications for asylum and withholding of removal from Somalia, and remanding, the panel held that the Board erred in concluding that Aden did not qualify for an exception to the firm resettlement bar, and that the evidence compelled the conclusion that he suffered past persecution in Somalia on account of a protected ground.

Aden asserted that he suffered persecution in Somalia by members of Al-Shabaab, a militant terrorist organization affiliated with Al-Qaeda and the Islamic State, after his brother refused their orders to shut down his theater showing American and Hindi movies and sports, which Al-Shabaab viewed as “Satanic” movies. The Board concluded that Aden was ineligible for asylum because he was firmly resettled in South Africa, and that he failed to establish that he suffered past persecution in Somalia on account of a protected ground.

The Board noted that Aden presented “ample evidence” of persecution in South Africa, but nonetheless determined that he failed to qualify for the restricted-residence exception to the firm resettlement bar because the persecution he faced was at the hands of private individuals, rather than the South

*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

ADEN V. WILKINSON 3

African government. The panel concluded that the Board erred in doing do, holding that the restricted-residence exception applies when the country’s authorities are unable or unwilling to protect the applicant from persecution by nongovernment actors.

The panel held that the evidence compelled the conclusion that Aden suffered past persecution in Somalia, where in addition to physically beating Aden, members of Al-Shabaab kept tabs on him by contacting his brother and warned they would kill Aden and his brother if they continued to disobey Al-Shabaab’s command to close their theater. The panel wrote that the chain of events revealed that Al-Shabaab intended to coerce Aden to submit to its new political and religious order, and used offensive strategies— beatings, destruction of property, and death threats—to achieve this goal. Further, the panel explained that continuing political and social turmoil caused by Al- Shabaab provided context for the harm and death threats that Aden experienced, which together with the past harm, compelled the conclusion that he suffered past persecution in Somalia.

The panel held that substantial evidence did not support the Board’s determination that Aden failed to establish that he was targeted on account of a protected ground because Al Shabaab was motived by their own political and religious beliefs, rather than Aden’s. The panel explained that Al- Shabaab’s accusation that the brothers were featuring Islamically forbidden, “Satanic” films provided direct evidence of their political and religious motive, and that even if the brothers did not feature the films out of their own political or religious convictions, Al-Shabaab at the very least imputed those beliefs to them. The panel wrote that the only logical explanation for Al-Shabaab’s treatment of Aden

4 ADEN V. WILKINSON

and his brother was that their actions were subversive to Al- Shabaab’s political and religious doctrine.

The panel remanded for the Board to consider, under the appropriate framework, whether Aden was firmly resettled in South Africa, and to give the government an opportunity to rebut the presumption of future persecution triggered by Aden’s showing of past persecution on account of a protected ground.

Concurring, Judge Rawlinson agreed that the case should be remanded for reconsideration of the firm resettlement issue. Judge Rawlinson noted that despite the fact that the IJ never addressed the issue of whether persecution by private actors may prevent application of the firm resettlement bar, the Board concluded that the firm resettlement bar applied to Aden because he did not introduce any evidence that the South African government imposed any restrictions on his residency such that the restricted-residence exception applied. Judge Rawlinson wrote that the Board’s conclusion was not supported by substantial evidence in the record, as reflected in the IJ’s factual findings. Judge Rawlinson also agreed that the Board erred in concluding that Aden failed to establish a nexus to a protected ground because, based on binding precedent, an applicant such as Aden, who disagrees with Al Shabaab’s view of the proper interpretation of Islam, can establish persecution on account of a protected ground by showing that others in his group persecuted him because they found him insufficiently loyal or authentic to the religious ideal they espouse.

ADEN V. WILKINSON 5

COUNSEL

Emery El Habiby, El Habiby Law Firm, Sun City, Arizona, for Petitioner.

Stephen J. Flynn, Assistant Director; Lynda A. Do, Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

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

This case has been pending six years! Should have been granted by the IJ. No wonder EOIR is running a 1.3 million backlog! Attempts to turn “easy grants” into bogus denials is killing this system, not to mention the asylum seekers suffering the “triple whammy” of EOIR’S lack of expertise, lousy training, and a “denial culture.”

My good friend, colleague, and former NAIJ President Judge Dana Leigh Marks, who actually is an asylum expert, once told The NY Times that asylum cases are like the death penalty in traffic court. But, I suspect that many folks appearing in traffic court get significantly MORE due process than those on trial for their lives in our broken, biased, and dysfunctional Immigration Courts.

Judge Garland needs to fix this! Sooner, rather than later!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-05-21

⚖️SUPREMES: In 5-3 Decision By Justice Gorsuch, Respondent Has Burden Of Proof On Cancellation & Loses On Ambiguous Record Of Conviction!

Pereida v. Wilkinson, U.S., 03-04-21

Here’s the link to the full decision:

https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf

MAJORITY: Justice Gorsuch (opinion), Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Kavanaugh

DISSENT: Justice Breyer (opinion), Justice Kagtan, Justice Sotomayor

NOT PARTICIPATING: Justice Barrett

SYLLABUS (by Court staff):

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 19–438. Argued October 14, 2020—Decided March 4, 2021

Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U. S. C. §§1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonper- manent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. §28–608 (2008). Ana- lyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of re- moval, §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unli- censed business, and thus the conviction likely constituted a crime in- volving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.

Held: Under the INA, certain nonpermanent residents seeking to cancel

2

PEREIDA v. WILKINSON Syllabus

a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. An alien has not carried that bur- den when the record shows he has been convicted under a statute list- ing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. Pp. 5–17.

(a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal. §1229a(c)(4)(A). Mr. Pereida accepts his burden to prove three of four statutory eligibility requirements but claims a different rule should apply to the final requirement at issue here—whether he was convicted of a disqualifying offense. Mr. Pereida identifies nothing in the statutory text that singles out that lone requirement for special treatment. The plain reading of the text is confirmed by the context of three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction” in “any proceeding under this chapter,” regardless of whether the proceedings involve efforts by the government to re- move an alien or efforts by the alien to establish eligibility for relief. §1229a(c)(3)(B). Next, Congress knows how to impose the burden on the government to show that an alien has committed a crime of moral turpitude, see §§1229a(c)(3), 1227(a)(2)(A)(i), and yet it chose to flip the burden when it comes to applications for relief from removal. Fi- nally, the INA often requires an alien seeking admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible,” §1229a(c)(2), which in turn requires the alien to demonstrate that he has not committed a crime involving moral turpi- tude, §1182(a)(2)(A)(i)(I). Mr. Pereida offers no account why a rational Congress would have placed this burden on an alien who is seeking admission, but lift it from an alien who has entered the country ille- gally and faces a lawful removal order. Pp. 5–7.

(b) Even so, Mr. Pereida contends that he can carry the burden of showing his crime did not involve moral turpitude using the so-called “categorical approach.” Applying the categorical approach, a court considers not the facts of an individual’s conduct, but rather whether the offense of conviction necessarily or categorically triggers a conse- quence under federal law. Under Mr. Pereida’s view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on a business without a license—the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida’s crime of conviction?), the other hypothetical (could some- one commit that crime of conviction without fraud?). And the Ne- braska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving

Cite as: 592 U. S. ____ (2021) 3 Syllabus

divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a “modified” categori- cal approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior convic- tion.” Mathis v. United States, 579 U. S. ___, ___. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these facts bears the risks associated with failing to do so. This point is confirmed by the INA’s terms and the logic undergirding them. A different conclusion would disregard many precedents. See, e.g., Taylor v. United States, 495 U. S. 575, 600. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, see, e.g., Johnson v. United States, 559 U. S. 133, they work against the alien seeking relief from a lawful removal order. Congress can, and has, allocated the burden differently. Pp. 7– 15.

(c) It is not this Court’s place to choose among competing policy arguments. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. And Mr. Pereida fails to acknowledge some of the tools Congress seemingly did afford aliens faced with record-keeping challenges. See, e.g., §1229a(c)(3)(B). Pp. 15–17.

916 F. 3d 1128, affirmed.

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J.,andTHOMAS,ALITO,andKAVANAUGH,JJ.,joined. BREYER,J.,filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.

KEY QUOTE FROM DISSENT:

Finally, it makes particularly little sense to disregard this core feature of the categorical approach here. See id., at 203–204. As already noted, cancellation of removal is discretionary. Thus, when a conviction is not disqualifying under the categorical approach, the Government may still deny the noncitizen relief. If it turns out that an individual with a record like the one here in fact violated the statute in a reprehensible manner, that can be accounted for during the discretionary phase of the proceedings, when the categorical approach does not apply.

***

In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts apply- ing the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. See Mellouli, 575 U. S., at 805–806. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor, Shepard, and John- son. And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.”

Because the Court comes to a different conclusion, with respect, I dissent.

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

“When in doubt, throw ‘em out,” seems to be the majority’s refrain. As pointed out by Justice Breyer, a decision that allowed Mr. Pereida, who has lived in the U.S. for a quarter of a century, to apply for cancellation of removal because of the uncertainty as to whether his 2010 conviction for “attempted criminal impersonation” under Nebraska law involved “moral turpitude,” would not have guaranteed him relief. It merely would have allowed the Immigration Judge to weigh the substantial equities that Mr. Pereida and his family had developed against his decade-old criminal conviction.

The Immigration Judge could then have decided, on the basis of a fully developed record, in the exercise of discretion whether or not Mr. Pereida merited a “second chance” in the U.S. And, of course, if the application were granted, ICE would still have the ability to appeal to the BIA, which exercises “de novo” review on questions of discretion.

There is lots that needs to be changed about our current immigration system. It’s too bad that Congress appears too deadlocked to get the job done.

PWS

03-04-21

UPDATE:

”Sir Jeffrey” Chase just reminded me that our Round Table 🛡⚔️filed an amicus brief in support of the respondent’s position in this case. Sadly, we didn’t carry the day, here! ☹️

But, we’ll be heard from again on the “categorical approach.” I guarantee it!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-04-21

⚖️ABOVE THE LAW: Trump Treated Ethics, Legal Norms, & Human Values Like A Joke — The GOP Supremes Laughed With Him, As They Insured His Lack Of Accountability & Actively Undermined Those With The Courage To Stand Up To Tyranny!🤮

Jacqueline Thomsen reports for the National Law Journal:

. . . .

Even with an emoluments lawsuit filed against Trump on his first day in office, four years later nothing came of it. After he left office, the lawsuits were declared moot by the U.S. Supreme Court and dismissed.

The struggle to legally hold Trump to account over the alleged emoluments violations were emblematic of the rest of the lawsuits he faced during his presidency, whether they targeted him individually or his administration.

When lower courts ruled against Trump officials—as they did in suits over border wall construction—his administration would go to the U.S. Supreme Court to get an emergency order that allowed them to continue the challenged action. More often than not, Trump got a ruling in his favor.

“Trump could count on them for anything,” Norm Ornstein, a conservative resident scholar with the American Enterprise Institute, said of Justices Clarence Thomas and Samuel Alito.

“And certainly that’s the case with Gorsuch, Kavanaugh and Barrett,” he added, referring to the three justices Trump appointed to the court.

And the novel legal questions surrounding lawsuits against a sitting president were enough to significantly delay several other challenges against him. House cases dragged out as courts determined whether lawmakers had the ability to sue to enforce subpoenas against the administration, a legal issue that forced similar suits to halt for months.

Despite two impeachments, hundreds of lawsuits against his administration and other litigation targeting him and his businesses, Trump left office relatively legally unscathed. Armed with a litigious past and a grip on his political party, he successfully managed to use the country’s institutions to minimize the blowback and get his way.

. . . .

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

Those with NLJ access (everyone used to get 3 free articles/mo; now it’s down to one) can read the rest of Jacqueline’s article at the link. She’s a great writer. Too bad so much of her work is “hidden behind the wall.”

Lack of accountability for scofflaw behavior, abuse of power, and corruption are hallmarks of third-world dictatorships and authoritarian regimes throughout history.

The Supremes’ enabling started with the Travel Ban cases and continued to the Capitol insurrection, which “the complicit ones” were able to watch unfold from their marble palace across the street.

So, the Supremes, the institution whose most important job is to protect American democracy, democratic institutions, due process, and individual rights when the other two branches fail, wasn’t up to the job! Despite the Supremes’ best efforts to undermine democratic governance, and their active furthering of the GOP’s race-driven voter suppression agenda, 81 million voters bailed us out this time around. But, it’s highly unlikely that American democracy could survive another “Trump-type” authoritarian regime. Don’t expect any help from the Supremes as currently comprised.

⚖️🧑🏽‍⚖️Better judges for a better America!🇺🇸🗽

🇺🇸⚖️🗽Due Process Forever!

PWS

03-04-21

🗽BIDEN IMMIGRATION BILL: Here’s The National Immigration Law Center’s (“NILC”) Analysis Of The Key Provisions Of The U.S. Citizenship Act!

https://www.nilc.org/wp-content/uploads/2021/03/USCA-key-provisions-summary.pdf

Here’s the section relating to the Immigration Courts:

Title IV: Immigration Courts, Family Values, and Vulnerable Individuals

We are facing a due process crisis in the immigration courts. Nearly 1.3 million cases are currently pending in a structurally flawed system housed within a

prosecutorial agency, the U.S. Department of Justice (DOJ).4 While this bill

4 https://trac.syr.edu/immigration/reports/637/.

10

falls short of creating an independent Article I immigration court,5 provisions in the bill would improve court operations and enhance due process protections for individuals facing highly complex immigration court proceedings that

often raise issues of life and death.6 Even though representation is often

the single greatest factor in determining whether an individual will obtain relief in removal proceedings,7 low-income immigrants and people in immigration detention face significant barriers to obtaining counsel. This bill calls for expanding alternatives to detention and authorizes funding for the appointment of counsel for children and vulnerable noncitizens. Provisions in this bill also provide for an expansion of DOJ’s Legal Orientation Program and greater access to legal information for immigrants who are not

detained. These are important steps in the right direction, but the bill falls short of ending civil immigration detention and establishing a much-needed universal representation program.8

Judicial diversity encourages fair decision-making, but DOJ’s Executive Office for Immigration Review (EOIR) has a long history of politicized

hiring,9 resulting in a supermajority of judges on the bench who have prosecutorial backgrounds. This bill calls for the hiring of additional immigration judges (IJs) and Board of Immigration Appeals (BIA) members who are experts in immigration law, and it encourages the hiring of IJs who have diverse experience, including people from the private sector. The bill also requires EOIR to conduct mandatory continuing legal and diversity training for IJs and BIA members. Additional steps must be taken to ensure critical oversight into the hiring process, promote diversity, and eliminate harassment in the immigration courts.10

Also included in this bill are provisions to protect vulnerable individuals. The bill eliminates the one-year filing deadline for asylum claims and increases access to employment authorization for people seeking asylum and for U and T visa applicants, ensuring that vulnerable populations seeking refuge in the U.S. will be able to work and support their families while their immigration cases are pending.

5 https://www.aila.org/advo-media/aila-correspondence/2020/advocates-call-on-congress-

establish-independent.

6 https://www.washingtonpost.com/opinions/im-an-immigration-judge-heres-how-we-can-fix-our-

courts/2019/04/12/76afe914-5d3e-11e9-a00e-050dc7b82693_story.html.

7 https://bit.ly/3q310Uh.

8 https://www.vera.org/advancing-universal-representation-toolkit/the-case-for-universal- representation-1.

9 https://www.whitehouse.senate.gov/news/release/senators-press-barr-on-politicization-of- justice-department-administration-of-immigration-courts.

10 https://www.sfchronicle.com/politics/article/Sexually-inappropriate-behavior-runs-rife-

in-15889003.php.

FEBRUARY 2021

11

The bill calls for expanding alternatives to detention and authorizes funding for the appointment of counsel for children and vulnerable noncitizens.

X Provides for appointing counsel for children and vulnerable noncitizens. Authorizes funding for and requires DOJ to appoint or provide counsel

for children, vulnerable individuals, and other people where necessary. Requires DHS to provide copies of their immigration files to individuals who are in immigration court proceedings.

X Requires access to legal orientation programs and access to counsel. Requires legal orientation programs to be available for all noncitizens in immigration detention. DHS must provide access to counsel inside all immigration detention facilities and border facilities.

X Increases access to legal information. Expands the help desk program

to all immigration courts, providing non-detained individuals who have pending asylum claims access to information related to immigration status. Requires DHS to provide copies of their immigration files to people who are in immigration court proceedings.

X Expands alternatives to detention. Expands the family case management program and requires DHS to develop additional community-based programs. People enrolled in these programs will receive legal orientations.

X Increases immigration court hiring. Requires DOJ to increase the number of IJs on the bench, hire additional BIA staff attorneys, and provide sufficient support staff. In hiring the new IJs and BIA members, DOJ is instructed to select people from diverse backgrounds, including from the nonprofit sector and the private bar and people with academic experience.

X Expands training for IJs and members of the BIA. Requires the EOIR

to conduct mandatory training for IJs and members of the BIA, including continuing legal training and training on age, gender, and trauma sensitivity.

X Directs EOIR to modernize technology. Requires the EOIR director to modernize electronic systems, including by allowing electronic filing, to improve court proceedings.

X Eliminates barriers to asylum and protects vulnerable populations. Removes the one-year time limit for filing an asylum claim. Increases protections for U visa, T visa, and VAWA applicants by providing them with a rebuttable presumption of release from detention and prohibiting the removal of these applicants from the U.S. while an application is pending. Increases the number of U visas, which are available to some crime victims, from the current cap of 10,000 to 30,000 per year.

FEBRUARY 2021

12

In hiring new IJs and BIA members, DOJ is instructed to select people from diverse backgrounds, including from the nonprofit sector and the private bar and people with academic experience.

X Increases access to employment authorization for people seeking U and T visas and protection under VAWA. People seeking U and T visas shall and must be granted employment authorization on the date their application is approved or a date to be determined by the DHS secretary within 180 days of submitting their petition, whichever is earlier. Employment authorization is issued for two years, with the possibility of renewal.

X Increases access to employment authorization for people seeking asylum. Provides that DHS shall grant employment authorization to bona fide and non-detained asylum-seekers within 180 days after they file their asylum application with DHS or DOJ.

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

The improvements to the Immigration Courts are all helpful. But, as the NILC points out, they fall short of what’s really needed: An independent Article I Immigration Court. One thing the bill does address, lack of diversity and immigration/human rights expertise among EOIR judicial hires (over the past three Administrations) is a glaring problem and hinderance to achieving due process and fundamental fairness.

Thanks to my friend and NDPA superstar Laura Lynch, Senior Immigration Policy Attorney at the NILC for passing this along.

⚖️🗽🇺🇸🧑🏽‍⚖️Due Process Forever!

PWS

03-03-21

EUGENE ROBINSON @ WASHPOST: The GOP Is The Party Of Jim Crow ☠️ — The Rest Of Us Who Believe In Democracy Had Better Join The Fight To Preserve The Voting Rights Of Citizens Of Color!

https://www.washingtonpost.com/opinions/the-republican-party-is-making-jim-crow-segregationists-proud/2021/03/01/80036fce-7ac7-11eb-b3d1-9e5aa3d5220c_story.html

Opinion by Eugene Robinson

March 1 at 5:18 PM ET

The Republican Party’s biggest problem is that too many people of color are exercising their right to vote. The party’s solution is a massive push for voter suppression that would make old-time Jim Crow segregationists proud.

The Conservative Political Action Conference circus last week in Orlando showed how bankrupt the GOP is — at least when it comes to ideas, principles and integrity. Some might argue that the party, in buying into the lie that last year’s election was somehow stolen, is simply delusional. I disagree. I think Republican leaders know exactly what they’re doing.

The GOP may have lost the White House and the Senate, but it remains strong in most state capitols. So far this year, according to the Brennan Center for Justice, Republicans in 33 states “have introduced, prefiled, or carried over 165 bills to restrict voting access.” The thrust of virtually all these measures is to make it more difficult for African Americans and other minorities to vote.

These efforts at disenfranchisement are more numerous, and more discriminatory, in several of the swing states President Biden carried narrowly: Arizona, Pennsylvania and Georgia. That should come as no surprise. GOP officials who had the temerity to follow the law and count the November vote honestly, such as Georgia Secretary of State Brad Raffensperger, have been all but excommunicated by their state Republican Party organizations.

In Georgia — where not only did Donald Trump lose to Biden by 11,779 votes, but also two incumbent GOP senators were defeated by Democratic challengers — Republicans are using their control of the statehouse to try to eliminate all early voting on Sundays. That would put an end to “Souls to the Polls,” a popular Sunday get-out-the-vote initiative in which Black churches help parishioners get to polling places and cast their ballots.

. . . .

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

Read Eugene’s full op-ed at the link.

After a Presidential election that they lost by a substantial majority of votes, the GOP has decided that the solution isn’t to improve on their party’s unpopular messages of shame, blame, intolerance, ignorance, and White privilege. Nor have they chosen to abandon their corrupt and divisive leader. No, the answer, according to the GOP, is to reduce the size of the electorate to keep the will of the majority from prevailing.

There is not a whit of evidence about widespread voter fraud or any credible reason to believe that the results don’t represent the will of the majority of American voters. Nevertheless, the GOP has introduced slews of bills at the state level to make it more difficult for African Americans, Latinos, and other minorities to vote. Just like the White southern aristocracy after the Civil War, the modern GOP fears that true democratic majority rule will deprive them of their minority power and privilege.

James “Jim” Crow
Symbol of American Racism

Well, you’ve heard it all before on Courtside. The Voting Rights Act is the cornerstone of modern American democracy. The forces of anti-democracy, including the GOP and their Supremes’ majority, intend to undo it in the name of White Supremacy.

The overt suppression of African-American voting rights that ended Reconstruction ushered in more than four decades of gross violations of the 13th 14th, and 15th Amendments. We should remember that the White-dominated Federal Government and the Federal Courts basically took a cowardly pass on the rights of our African American fellow citizens for generations.

Eric Lutz summed it up in his recent article on Vanity Fair:

Biden is reluctant to end that filibuster. But at a certain point, failing to do so means failing to reckon with the the severity of the threat to democracy—and the particular peril the GOP’s attacks pose to the rights of Black Americans and other minorities. “The argument that preserving the filibuster is necessary because it’s an important tool in our Democracy falls apart when it’s clearer with every passing day that we won’t have a Democracy without Congress passing voting rights legislation,” the former Obama aide David Plouffe remarked Monday. Republicans are mounting a concerted, relentless attack on democracy. To defend against it, Democrats’ response must be proportional. And that means confronting the reality that Trump leaving office didn’t extinguish his Big Lie, but made it more powerful.

https://apple.news/Aawbmzi5JRkGSdLedjZN23Q

It’s essential that the majority of us unite against the attempt of the corrupt GOP to restore the horrors of White Supremacy and Jim Crow. And, make no mistake — the attack on asylum seekers and migrants of color is an integral part of the White Nationalist program to kneecap American democracy. Under Trump, that effort culminated in the Capitol insurrection.

As the death of civil rights icon Vernon Jordon this week reminds us, those of us who believe in democracy must unite to fight the right and protect the right of all Americans to vote and the rights of immigrants to be treated as “persons” under the law.

🇺🇸🗽⚖️Due Process Forever!

PWS

03-03-21

THE GIBSON REPORT — 03-01-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — FEATURING: Under The EOIR Big Top 🎪 Robed TV Carnival Barkers Hand Out Death Sentences ☠️ With Ignorance, Indolence, Indifference, & Insult To Injury!

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, March 19, 2021 (The timing of postponement notices has been inconsistent and it is unclear when the next announcement will be. EOIR announced 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28). There is no announced date for reopening NYC non-detained at this time.

USCIS Office Closings, Including Weather

TOP NEWS

Biden revokes Trump ban on many green card applicants

Reuters: U.S. President Joe Biden on Wednesday revoked a proclamation from his predecessor that blocked many green card applicants from entering the United States.

Biden to allow migrant families separated under Trump to reunite in the U.S.

Politico: ACLU Executive Director Anthony D. Romero was quick to welcome Mayorkas’ announcement, but cautioned that “the devil is in the details and Secretary Mayorkas has to shed all the caveats and qualifications around his announcement and follow through with everything that’s necessary to right the wrong.” See also Lawyers have found the parents of 105 separated migrant children in past month.

Biden to Discuss Border and Other Issues With Mexican President

NYT: The two leaders, who previously talked about ways to stem migration in a call on Jan. 22, just days after Mr. Biden took office, are expected to discuss addressing the root causes of persecution and poverty that force Central American families to flee to the United States.

First migrant facility for children opens under Biden

WaPo: Government officials say the camp is needed because facilities for migrant children have had to cut capacity by nearly half because of the coronavirus pandemic. At the same time, the number of unaccompanied children crossing the border has been inching up, with January reporting the highest total — more than 5,700 apprehensions — for that month in recent years.

Federal judge deals Biden another blow on 100-day deportation ban

Politico: U.S. District Judge Drew Tipton granted a preliminary injunction that blocks the moratorium the Biden administration announced on its first day.

ICE investigators used a private utility database covering millions to pursue immigration violations

WaPo: U.S. Immigration and Customs Enforcement officers have tapped a private database containing hundreds of millions of phone, water, electricity and other utility records while pursuing immigration violations, according to public documents uncovered by Georgetown Law researchers and shared with The Washington Post.

The Trump Administration’s Cruelty Haunts Our Virtual Immigration Courts

InTheseTimes: According to the Executive Office for Immigration Review (EOIR) — the Justice Department agency that oversees these immigration adjudication centers — nearly 300,000 asylum cases have been heard via videoconference in the past two years.

In The Story Of U.S. Immigration, Black Immigrants Are Often Left Out

NPR: Nana Gyamfi, Executive Director of the Black Alliance for Just Immigration, tells NPR’s Scott Simon about challenges Black immigrants to the U.S. face.

Consumer watchdog sues immigration services company, claiming it preys on detainees

NBC: The Consumer Financial Protection Bureau on Monday filed a lawsuit against Libre by Nexus, claiming the company is preying on immigrants through a bond scam that traps participants into paying expensive fees.

The five biggest omissions in massive Biden immigration bill

Examiner: Protocols for caring for families and children, border wall infrastructure, decriminalizing illegal immigration, immigration courts, employment-based immigration, and private detention facilities were not addressed in either the House or Senate versions of the bill.

LITIGATION/CASELAW/RULES/MEMOS

USCIS Launches Pilot Program to Facilitate Attorney or Representative Remote Participation in an Asylum Interview

USCIS has launched a temporary pilot program to facilitate attorney or representative participation in an asylum interview from a remote location via video or telephone. The pilot program is available only at the Arlington, Boston, Miami, Newark, and Newark/Manhattan Branch asylum offices. AILA Doc. No. 21030131

2nd Circ. Judge Dings Majority’s ‘Uncharitable’ Asylum Ruling

Law360: A fractured Second Circuit panel tossed an El Salvadoran asylum seeker’s appeal, finding that his opposition to gangs was not a political opinion and that he could avoid future beatings, a view the dissenting judge called an “uncharitable” interpretation of the case.

BIA Rules on Special Rule Cancellation of Removal

BIA ruled that an applicant for special rule cancellation of removal under INA §240A(b)(2) based on spousal abuse must demonstrate both that the abuser was their lawful spouse and was either a U.S. citizen or LPR at the time of the abuse. Matter of L-L-P-, 28 I&N Dec. 241 (BIA 2021) AILA Doc. No. 21022432

Justices ‘Baffled,’ ‘Confused’ By Asylum Cases

Law360: A pair of thorny immigration cases “baffled” and “confused” the inquisitive justices of the U.S. Supreme Court Tuesday as they wrestled with when testimony of asylum applicants must be presumed to be credible.

District Court Indefinitely Stops Government from Executing a 100-Day Moratorium on Removals

A district court grants nationwide preliminary injunction to prohibit enforcement and implementation of the 100-day pause on removals as outlined in the 1/20/21 DHS memo. (State of Texas v. USA, et al., 2/23/21) AILA Doc. No. 21012634

Presidential Proclamation Revoking Immigrant Visa Ban

On 2/24/21, President Biden issued Proclamation 10149 revoking Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131, which suspended immigrant visas due to the 2019 novel Coronavirus outbreak. (86 FR 11847, 3/1/21) AILA Doc. No. 21022490

DOS Provides Update on the Phased Resumption of Routine Visa Services

DOS updates its announcement and FAQs on the phased resumption of visa services following the rescission of Presidential Proclamation 10014, which suspended the entry of certain immigrant visa applicants into the United States. AILA Doc. No. 20071435

DOJ Appeals Ruling Limiting Immigrant Detentions Without a Court Hearing

Documented: Judge Alison Nathan’s Nov. 30 ruling at U.S. District Court in Manhattan was the first to draw a constitutional line on how long an Immigration and Customs Enforcement detainee waits for an initial hearing before a judge.

ICE Can’t Keep Transferred Detainee Out Of Fla. Class Action

Law360: A Florida federal judge ruled Friday that a Mexican citizen can join a class action challenging U.S. Customs and Immigration Enforcement detainee conditions at three South Florida facilities during the COVID-19 pandemic, saying the agency cannot escape jurisdiction by transferring him to a facility across the country.

Council Sues Customs and Border Protection to Release Records of Militarized Raids on Humanitarian Aid Station

AIC: The Council and partners filed a Freedom of Information Act (FOIA) lawsuit to compel the government to release documentation of three raids on a humanitarian aid station in the deadly desert in Southern Arizona.

HHS Withdrawal of Request for Comment on Proposed Revisions to Forms for Sponsors of Unaccompanied Children

The Department of Health and Human Services published a notice stating that it is no longer pursuing changes to the forms for sponsors of unaccompanied children on which it had requested public comment on 1/5/21 at 86 FR 308, and therefore withdraws its request for comment. (86 FR 11537, 2/25/21) AILA Doc. No. 21022531

DHS Secretary Mayorkas Announces Family Reunification Task Force Principles and Executive Director

DHS: Secretary Mayorkas announced that Michelle Brané will serve as the Task Force’s Executive Director. Most recently, she served as the senior director of the Migrant Rights and Justice program at the Women’s Refugee Commission.

RESOURCES

·         Correction: The ERO ombudsman email that was circulating last week had a typo and should be: EROOmbudsman@ice.dhs.gov.

·         AILA: Policy Brief: Walled Off: How USCIS Has Closed Its Doors on Customers and Strayed from Its Statutory Customer Service Mission

·         AILA: Current Leadership of Major Immigration Agencies

·         AILA: Practice Alert: ICE Interim Guidance on Civil Immigration Enforcement and Removal Priorities

·         AILA: Practice Pointer: Employment Verification During the COVID-19 Outbreak

·         AILA: Summary of the U.S. Citizenship Act

·         AILA: Section-by-Section Summary of the U.S. Citizenship Act

·         AILA: Podcast: Representing a Mentally Ill Client Facing Removal Proceedings

·         AILA: Resource Related to Lawsuit Granting Preliminary Relief for Diversity Visa Applicants

·         ASISTA: New Advisory: Overview of U.S. Citizenship Act of 2021 & Its Impact on Immigrant Survivors

·         Black Immigrants Got Talent

·         CGRS: Children’s Asylum Manual: A Resource for Practitioners

·         CLINIC: Biden Administration Rescinds 2018 USCIS Notice to Appear Guidance

·         CLINIC: Department of State Shifts Human Rights Reports Comparison Charts

·         CMS: New Study about Immigrant Health in New York City

·         CRS: Are Temporary Protected Status Recipients Eligible to Adjust Status?

·         GAO: Actions Are Needed to Address the Cost and Readiness Implications of Continued DOD Support to U.S. Customs and Border Protection

·         ICYMI: Important Policy & ASISTA Updates

·         ILRC: What Every Noncitizen Must Know About Cannabis and Immigration

·         Immigration Mapping: From Hirabayashi to DACA

·         LGBT Adult Immigrants in the United States

·         LSNYC Practice Advisory on continuances: fourth edition of the sample motion

·         USCIS: Resources on U.S. Citizenship for Adult Adoptees

EVENTS

3/2/21 SIJS-based Adjustment of Status before EOIR

3/2/21 Creative Evidentiary Solutions for Asylum Cases

3/3/21 Thinking Beyond Resettlement: Are Complementary Pathways for Refugees the Answer?

3/4/21 TPS Updates

3/4/21 An Immigration Practitioner’s Guide to Ethics

3/5/21 Matter of A-B-: Litigation Update and Strategy Discussion

3/5/21-3/26/21 Webinar Series: Selected Issues in Inadmissibility

3/8/21 How Refugee Protections Fail Migrant Women: Personal is no Longer Political

3/8/21 NYIC: DOJ Recognition & Accreditation

3/10/21 All About DOJ Recognition and Accreditation

3/10/21 A Celebration of Women in Immigration Law

3/10/21 Deported Veterans Symposium

3/12/21 Strategies and Tactics for Successful Immigration Appeals

3/16/21 Representing Immigrants in Family Court

3/16/21 Ethical Issues in Crisis Lawyering: Representation and Advocacy Challenges

3/16/21 Pending Lawsuits: Where Are We Now? Keeping Up with BIG Litigation

3/17/21-3/18/21 Legal Remedies for Immigrant Survivors: Introductory Seminar Series – Part II: Preparing The Case

3/17/21 Incorporating Holistic Services in an Immigration Legal Services Program

3/18/21 CGRS Webinar: Asylum Policy and Litigation Update Under the Biden Administration

3/23/21 Complex Naturalization: How to Get Your Clients to Citizenship

3/23/21 Understanding the Conditional Permanent Residence Petition (Form I-751)

3/24/21 Privacy at Risk: Searches of Electronic Devices at Ports of Entry and Beyond

3/30/21 Public Charge and the Affidavit of Support

3/30/21-5/14/21 Comprehensive Overview of Immigration Law (COIL)

4/5/21 Overview of Immigration Law Training

4/5/21-4/26/21 Webinar Series: Selected Issues in U Nonimmigrant Status

4/15/21 DACA

4/20/21 Hot Topics in Naturalization Adjudications

4/21/21 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2021

4/28/21 Community Defense: Legal Service Partnerships with Organizers

5/4/21 Public Charge: Current State of Play

5/6/21 Hot Topics in Asylum Law

5/10/21 All About DOJ Recognition and Accreditation

5/13/21 Marijuana and Immigrants

5/17/21-5/20/21 CLINIC Convening 2021

5/18/21 Ethics in Representing Family Members in U Visa, U AOS/929, and VAWA Cases

5/26/21 Hot Topics in Removal Defense

6/1/21 VAWA Adjustment of Status Fundamentals

6/9/21 Hot topics: Adjudication and Enforcement Trends

6/10/21 Public Charge and Hot Topics in Consular Processing

6/14/21 Taxes at the Border: Understanding the Tax Consequences of Immigration Status

6/15/21 U Visa Hot Topics

6/22/21 Defending Immigration Removal Proceedings 2021

6/30/21 Immigration Update – June 2021

7/22/21 Defending Immigration Removal Proceedings 2021

·         9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, March 1, 2021

·         Join the Deported Veterans Symposium on March 10-12, 2021

·         LGBT Adult Immigrants in the United States

·         Jennifer Lee Koh Joins Pepperdine Law Faculty

·         Democrats Strategizing on Immigration Reform, Piecemeal or the Whole Enchilada?

Sunday, February 28, 2021

·         Year of the Ox’s “Viral” Song Gains Traction Amid Rise in Anti-Asian Violence

·         Brookings Institution: Biden’s Immigration Reset

Saturday, February 27, 2021

·         At the Movies: Minari (2020)

·         Immigration Article of the Day: Freedom of Movement, Migration, and Borders by Jaya Ramji-Nogales & Iris Goldner Lang

Friday, February 26, 2021

·         Vera Institute — A Federal Defender Service for Immigrants Why: We Need a Universal, Zealous, and Person-Centered Model

·         Black Immigrants Got Talent (BIG Talent)

·         At the Movies: The Marksman (2021)

·         Fortress (North) America

·         Immigration Mapping: From Hirabayashi to DACA

·         At the Movies: Alien Terminology and Change the Subject, a 2019 Documentary

·         Immigration Article of the Day: Fee Retrenchment in Immigration Habeas by Seth Katsuya Endo

Thursday, February 25, 2021

·         Big Strides In Reunifying Separated Migrant Familes; Long Ways Still To Go

·         Call For Papers: Forced Migration Review on “Public health and WASH”

·         Immigrant Leaves Maplewood Church After 3½ Years As ICE Decides Not To Deport Him

·         Sister Simone Campbell on Immigration Reform

·         #WeCanWelcome Asylum Seekers: Meet Mirna Linares de Batres

·         Throwback Thursday: My Trials by Judge Paul Grussendorf

·         Immigration Article of the Day: Tried and (Inherently) Prejudiced: Disposing of the Prejudice Requirement for Lack of Counsel in Removal Proceedings by Ayissa Maldonado

Wednesday, February 24, 2021

·         President Biden revokes Trump bans on many green card applicants, temporary foreign workers

·         Court Enjoins Biden Administration’s 100 Day Removal Pause

·         Ahilan Arulanantham joins UCLA School of Law as co-faculty director of the Center for Immigration Law and Policy

·         The five biggest omissions in massive Biden immigration bill

·         Immigration Article of the Day: Capital Controls as Migrant Controls by Shayak Sarkar, California Law Review, Forthcoming

Tuesday, February 23, 2021

·         From ‘aliens’ to ‘noncitizens’ – the Biden administration is proposing to change a legal term to recognize the humanity of non-Americans

·         Congressmember Debbie Leski’s Racist Remarks

·         Teaching Immigration Law: Law School Clinics in the US and UK

·         Immigration Article of the Day: Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World by Francis Tom Temprosa

Monday, February 22, 2021

·         From the Bookshelves: Migrant Conversions:  Transforming Connections between Peru and South Korea by Erica Vogel

·         Supreme Court News: Court to Review Public Charge Case, Hear Asylum Credibility Oral Arguments Tomorrow

·         USCIS restores citizenship and naturalization test

·         Immigration Lawyers Toolbox®

·         Code Compare on Lexis Nexis

·         Human Rights Watch — US: Take New Approach at Mexico Border

·         In Challenging Times, A Call for African American/Asian American Unity

·         Former Trump senior advisor Stephen Miller slams Biden immigration proposal

·         Immigration Article of the Day: The Political (Mis)representation of Immigrants in Voting by Ming Hsu Chen and Hunter Knapp

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

Check out “Top News #7.” It’s an article by Arvind Dilawar in In These Times about “EOIR’s Black Sites,” 🏴‍☠️ euphemistically known as “Immigration Adjudication Centers” where imposters masquerading as “judges” “process” cases by TV on the deportation assembly line, often without regard to the law, the facts, and the humanity of their victims and the lawyers representing them.

Here’s an excerpt:

Lisa Koop, associate director of legal services for the National Immigrant Justice Center (NIJC), stood with her client in immigration court in September 2019. The client (name withheld for privacy) had escaped violence in Central America and fled to the United States with her young daughter. Here, they were taken into custody by immigration authorities, which landed them in this courtroom, waiting to hear whether they would be granted asylum.

They were initially scheduled with a traditional, in-person immigration judge. But that judge retired and the case was transferred to an “immigration adjudication center.” This new judge video conferenced in. Koop says the judge did not allow an opening statement, was not familiar with relevant precedent and did not ask Koop to address any particularities of the case in the closing argument. The judge ruled that, while the case was “very sad,” it did not meet the criteria for asylum, then wished Koop’s client “good luck” following deportation.

This outrageous mockery of due process, fundamental fairness, and real judicial proceedings is ongoing, in the Department of “Justice” — yes, folks, the Chief Prosecutor of the U.S. maintains his own “wholly owned” “court system” in a nation where justice supposedly is unbiased and impartial — more than five weeks into the Biden Administration.

Last week, we heard a refreshingly emotional expression of personal gratitude and recognition of the essential role of refugee protections from Judge Merrick Garland.

What we haven’t heard to date is a recognition that what will soon be “his” DOJ treats refugees (in this case vulnerable asylum seekers) with disdain and disrespect “revved up” by four years of White Nationalist abuses heaped on them by Judge Garland’s corrupt predecessors as AGs for Trump. We also have yet to hear what Judge Garland plans to do about the deadly and disreputable “EOIR Clown Show” 🤡🦹🏿‍♂️ which will soon be operating under his auspices and which, whether he realizes it or not, will form the the major part of his legacy to American Justice.

Judge Garland should call up folks like Lisa Koop at NIJC, Claudia Valenzuela at American Immigration Council, and their colleagues to get a “real life dose” of what it means to be or represent an asylum seeker in today’s dysfunctional and disreputable Immigration “Courts” that actually are 21st Century Star Chambers.

Star Chamber Justice — “Justice”
Star Chamber
Style

Better yet, he should replace the current EOIR Senior Executives and BIA Appellate Immigration Judges with Koop, Valenzuela, and others like them — “practical experts” in due process, equal justice, immigration, and human rights — who would restore and advance judicial integrity and fairness to a system that has abandoned and trampled upon those fundamental values!

Grim Reaper — G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper
Image: Hernan Fednan, Creative Commons License

As stated at the end of Dilawar’s article: “Asylum-seekers are wrongfully denied asylum, and justice is not served.” Duh!

🇺🇸🗽⚖️Due Process Forever! End the EOIR Clown Show!🤡🦹🏿‍♂️🎪☠️

PWS

03-02-21

WOMEN’S REFUGEE COMMISSION BIDS FOND FAREWELL TO NDPA 🌟 SUPERSTAR MICHELLE BRANÉ AS SHE TAKES KEY POSITION WITH BIDEN ADMINISTRATION! — “We can’t imagine a better person at the helm of the family separation task force. It’s a smart move by the Biden administration, and a massive win for the nation and for separated families.“

Dear Paul,

I am extremely proud to let you know that Michelle Brané, long-time director of the Women’s Refugee Commission’s Migrant Rights and Justice program, is headed to the Biden administration—effective immediately—to serve as executive director of the newly formed Interagency Task Force on the Reunification of Families. The task force is charged with identifying and reuniting families that were cruelly separated under the Trump administration.

In Michelle’s 14 years at WRC, she built our Migrant Rights and Justice program from the ground up. She and her team have been trailblazers in the work to protect the rights of women and girls seeking asylum in the United States.

READ OUR STATEMENT

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

Here’s the link to the full WRC press release:

https://www.womensrefugeecommission.org/press-releases/michelle-brane-tapped-for-biden-administration/

An truly inspired and very encouraging choice by the the Biden Administration! The only “downside” — I had Michelle on my “shortlist” for key judicial or executive positions at the “New EOIR,” as well as for an Article III judicial appointment! But, that still could and should happen when her a work at the Interagency Task Force is done!

Michelle is a prime example of the “new generation” of due-process-oriented leaders that the NDPA produces! Brilliant, tough-minded, battle-hardened, “practical scholars,” experts, and innovative managers who will see the battle for social justice through to success, no matter how long it takes. Her background, starting at the BIA, also demonstrates how Judge Garland could and must remake EOIR into a “model judiciary” that attracts, trains, and exports the “best and the brightest” for high level judicial and policy positions.

But, it’s not going to happen unless the current awful mess at EOIR is replaced with “Michelle caliber experts” from the NDPA.

Congrats again, Michelle. You make us all proud!

🇺🇸5🗽⚖️Due Process Forever!

PWS

03-01-21

☠️WITH LIVES ON THE LINE, BIA CONTINUES TO GET BASIC ASYLUM ANALYSIS WRONG! — We Need Change!

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/02/24/19-71375.pdf

Here’s a recent unpublished decision from the 9th Circuit in Deepak Lama v. Wilkinson, (Feb. 24, 2021):

Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,** District Judge.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation.

Deepak Lama, a citizen of Nepal, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal of an Immigration Judge (IJ) order denying his claims for asylum and withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand.

The IJ found that Lama had suffered past persecution on account of his political activity and was entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). But, the IJ also found that the government had rebutted the presumption, and the BIA then dismissed Lama’s appeal on the sole basis that Lama could safely and reasonably relocate within Nepal, to Chitwan, where he previously resided for five years without incident. Our review is limited to the ground on which the BIA relied. Qiu v. Barr, 944 F.3d 837, 842 (9th Cir. 2019).

When the presumption of a well-founded fear of future persecution applies, the government bears the “burden of showing that relocation is both safe and reasonable under all the circumstances” by a preponderance of the evidence. Afriyie v. Holder, 613 F.3d 924, 934 & n.8 (9th Cir. 2010), overruled on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1070 (9th Cir. 2017). “Relocation analysis consists of two steps: (1) ‘whether an applicant could relocate safely,’ and (2) ‘whether it would be reasonable to require the applicant to do so.’” Singh v. Whitaker, 914 F.3d 654, 659 (9th Cir. 2019) (quoting Afriyie, 613 F.3d at 934). We

1 The BIA found that Lama forfeited his claim under the Convention Against Torture. Lama does not challenge that ruling in this court.

2

conclude that the BIA’s limited relocation analysis does not satisfy the applicable legal requirements.

First, the agency “failed to take into account the numerous factors for determining reasonableness outlined in 8 C.F.R. § 1208.13(b)(3).” Knezevic v. Ashcroft, 367 F.3d 1206, 1215 (9th Cir. 2004). Relying on Lama’s stay in Chitwan between 2003 and 2008, the agency provided no analysis of whether it would be reasonable for Lama to relocate there at the time of his hearing, in 2017. Lama demonstrated that he experienced persecution in Nepal both in his hometown and later in Kathmandu, and that this persecution took place both before and after he lived in Chitwan. While his time in Chitwan appears to have been without incident, he last lived there many years ago. The government presented no evidence that Lama could safely and reasonably return there now, considering both the current political situation in Chitwan and Lama’s personal circumstances. See Singh, 914 F.3d at 661.

Second, the BIA’s analysis rests on an apparent misapprehension of the record. The BIA stated that “[t]he record contains no evidence that it would no longer be safe or reasonable for [Lama] to once again return to [Chitwan] where he had previously voluntarily relocated and resided for approximately 5 years without incident.” (Emphasis added.) But the record contains a 2016 letter written to Lama from his uncle, with whom he lived in Chitwan, indicating that Lama would not be

3

safe there. The BIA did not consider this evidence. And to the extent the BIA “erroneously presumed that relocation was reasonable and improperly assigned the burden of proof to [Lama] to show otherwise,” Afriyie, 613 F.3d at 935, it erred in that respect as well. See also 8 C.F.R. § 1208.13(b)(3)(ii) (burden of proof).

Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005), does not support the government’s position that because Lama once resided in Chitwan without incident, “it is axiomatic that he can do so again.” In Gomes, unlike this case, the petitioners had not shown past persecution and thus bore the burden to show that relocation was unreasonable. Id. at 1266–67 & 1266 n.1. In addition, unlike Lama, it appears that the petitioners in Gomes had safely resided in the area in question immediately prior to entering the United States. See id. at 1267. Gomes also did not involve the BIA failing to address evidence (here the letter from Lama’s uncle) indicating that relocation to the designated area could be unsafe.

For the foregoing reasons, we grant the petition and remand this matter to the BIA for further proceedings consistent with this decision. Any relocation analysis must comport with the governing regulations and this court’s precedents. See 8 C.F.R. § 1208.13(b)(3); Singh, 914 F.3d at 659–61. We also dismiss as moot the portion of Lama’s petition challenging the BIA’s denial of his motion to remand.

PETITION FOR REVIEW GRANTED IN PART AND DISMISSED IN PART; REMANDED.

4

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

Once again, this is nothing profound, difficult, or controversial. Just basic application of EOIR’S own regulations, consideration of all the evidence presented by the respondent, and basic analysis, with some fundamental fairness and common sense thrown in. That’s probably why the panel didn’t deem it worthy of publication. But, it does further illustrate a disturbing pattern at the BIA and the Immigration Courts.

During my time as an Immigration Judge, I was sometimes involved in the nationwide judicial law clerk (JLC) training program. One of my key points to the JLCs was that many Immigration Judges, even then, continued to get basic “burden shifting” and further analysis wrong once the respondent established past persecution, thereby invoking the regulatory presumption of future persecution.

The DHS then has the burden of establishing by a preponderance of the evidence either 1) fundamentally changed conditions that would eliminate any well-founded fear of individualized persecution; or 2) a reasonably available internal relocation alternative under the applicable regulations.

Because conditions seldom materially improve in most refugee-sending countries, and reasonable relocation alternatives that would eliminate a well-founded fear of persecution (not hiding in someone’s basement or in a cave in the forest) can seldom be established, in my experience, the DHS almost always failed to rebut the presumption. This was particularly the case because then, as now, the ICE counsel usually presented no testimony or other evidence to rebut the presumption beyond that contained in the State Department Country Report, which seldom was definitive on this type of highly individualized analysis.

Even where the DHS rebuts the regulatory presumption, the respondent still can win protection if she or he shows 1) compelling reasons for not returning arising from the past persecution, or 2) a reasonable possibility of other serious harm if returned.

These regulatory standards are consistent with the generous intent of the refugee definition as described by the Supreme Court in INS v. Cardoza-Fonseca. They should result in rather easy grants of protection in most cases involving past persecution,

However it appears that EOIR judges haven’t improved in this area. If anything, result-oriented decision-making geared to make denial of asylum the “administrative norm” evidently has been substituted for careful, professional, expert analysis. Indeed, correct analysis by expert judges knowledgeable in asylum law would probably result in most cases like this being granted at the Immigration Judge level, or even the Asylum Office, thus discouraging the DHS from taking largely meritless appeals to the BIA and reducing the workload in the Circuit Courts.

Instead the sloppy, biased, “any reason to deny” attitude that infects today’s EOIR means that justice for asylum seekers requires skilled lawyers, a “lucky draw” on judges at some level of the system, and, all too often, endless remands and time spent on “redos” to correct elementary errors. No wonder this system is running an astounding 1.3 million case backlog, even with many more IJs on the bench at both the trial and appellate levels!

This is a “system designed to fail.” And, failing it is, at every level, spilling over into the Article III Courts and placing the foundation of our entire U.S. justice system — due process for all under law — in jeopardy.

Quality, expertise, understanding, and a fair and humane attitude toward asylum seekers is much more important than quantity in asylum adjudication! This the exact opposite of the message delivered by the last Administration.

Here’s my basic thesis:

- Granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. (And, it saves lives).
  - En masse denials and trying to run a “deportation railroad” eventually leads to gross inefficiencies and systemic failure. (And, it kills innocent individuals).

I’m not the only one who believes this. As one of my esteemed Round Table colleagues recently quipped: “The sloppiness of the BIA in case after case is alarming.” Indeed it is; but, sadly, not particularly surprising or unusual.

🇺🇸⚖️🗽Due Process Forever!

PWS

03-01-21

🇺🇸⚖️🗽🧑🏽‍⚖️VERA INSTITUTE RECOMMENDS FEDERAL DEFENDER PROGRAM FOR IMMIGRANTS — Widespread Public Support For Representation In Immigration Court!

https://www.vera.org/publications/a-federal-defender-service-for-immigrants

Overview

The Vera Institute of Justice (Vera) recommends that the Biden administration draw from time-tested models, data, and knowledge to build a federally funded, universal legal defense service that provides universal, zealous, and person-centered defense to all immigrants. This federal defender service should be modeled on the criminal federal defender system, which is generally regarded as more successful at realizing the values of high-quality, appropriately funded representation than its state counterparts. Vera makes this recommendation based on years of experience building and managing national immigrant legal defense programs. A federal defender service built on these core values is effective and achievable, and it would help ensure that the lives, liberty, and community health of immigrants are given full and equal protection under the law regardless of status. This policy brief highlights that a federal defender service would address systemic inequities of the immigration system and has widespread support in the United States.

Authors

Vera Institute of Justice

Action Areas

Supporting Immigrants

Key Takeaway

A federally funded, universal legal defense service that provides universal, zealous, and person-centered defense to all immigrants would help address systemic inequities within the immigration system, and would represent a safeguard that is already proven, effective, achievable, and has widespread public support.

Publication Highlights

Vera has already worked with government partners, legal defense providers, advocates, and impacted people to create, test, and refine national immigrant legal defense programs grounded in universality, zealousness, and person-centeredness.

A federal defender service would combat the burden of racist immigration policies that most severely impact immigrants with criminal convictions, poor immigrants, Black immigrants, and immigrants with severe mental health conditions.

Without a federal defender service, tens of thousands of immigrants, including long-term permanent residents, asylum seekers, and parents of U.S.-citizen children, must face a hostile immigration system without representation.

Key Facts

Previous

Immigrants with attorneys are also

10 times more likely

to establish their right to remain in the United States than those without legal representation.

77%

of the 195,625 people whose immigration court cases completed in Fiscal Year 2019 did not have legal representation.

Immigrants with attorneys are

3.5 times more likely

to be granted bond than those without representation.

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

You can download the full report at the above link.

The Biden Administration should work into this effort the already operating, highly acclaimed, innovative VIISTA program pioneered and developed by Professor Michele Pistone at Villanova Law for training of non-attorney representatives to provide high-quality representation to asylum seekers in Immigration Court.

https://immigrationcourtside.com/category/professor-michele-pistone/vista-program/

Lots of the groundwork for a universal representation program has already been done! It’s about putting the right folks from outside Government in charge and building on the established foundation to take it to another level.

🇺🇸🗽⚖️Due Process Forever!

PWS

02-28-21

🛡🗽PROTECTING THE WORKERS WHO PROTECT US: Immigrants, Documented & Undocumented, Are The Core Of Our “Essential Workforce” That Has Carried Us Through The Pandemic — We Should Help Those Who Have Helped Us!

https://apple.news/A2LsyASukRaOXDQDOABC9cA

Jeremy Robbins writes in The Hill:

Before the inauguration, President Biden pledged a $1.9 trillion COVID-19 relief bill. Then, hours after he entered the Oval Office, he introduced an immigration bill, The U.S. Citizenship Act of 2021, which aims to put millions of undocumented immigrants on a pathway to citizenship. At first glance, these initiatives seem unrelated; in fact, they are deeply connected. Combining them is the best way to help us battle the COVID-19 pandemic and recover from the recession. Here’s why.

In the first wave of the COVID-19 pandemic, the United States and the world over learned a lesson about who was truly essential to the economy: the home health aides and nurses who care for the sick, the grocery and delivery workers who keep our stores and kitchens stocked, and the workers at our farms and food processing plants who keep our food supply chain from collapsing. These and so many other overlooked jobs — classified as “essential and critical” by the Department of Homeland Security — hold our society together, protect us, and make our economy work.

Large numbers of these essential workers are also undocumented immigrants. Over 78 percent of immigrants without legal status work in these fields, according to a report by UCLA’s Latino Policy and Politics Initiative. They’re not just risking their lives to keep American citizens safe and help rebuild our economy, but they do so without legal protections and under the constant fear of deportation. That’s inhumane. But it’s also dangerous for Americans. With hospitalizations of COVID-19 patients surpassing 52,000, Congress must follow the lead of countries like France and give these essential workers a fast track to the citizenship they deserve.

It’s no secret that immigrants are helping to keep us all afloat. Despite being just 13 percent of the population, immigrants make up 37 percent of all home health aides and almost one third of all physicians and psychiatrists. With a very real threat of meat and poultry shortages at the beginning of the pandemic, immigrants filled more than a third of the tough food processing jobs and nearly half of all farm jobs picking our fruits and vegetables. And as parents across the country are placed in the impossible situation of balancing full-time work and parenting during a pandemic, once again immigrants help shoulder the burden, making up more than 20 percent of all childcare workers in day care centers.

And yet, despite all of this, our federal government acted as though we didn’t need these workers. As the pandemic raged, millions of immigrants were explicitly left out of the CARES Act relief efforts, as were millions of their U.S. born children and spouses who were penalized for having an unauthorized immigrant in the family. Meanwhile, the Trump Administration sought to shut the border to immigrant workers and students, all but stopped processing citizenship applications and ended asylum for people fleeing horrific violence. It also fought unsuccessfully all the way to the Supreme Court for the right to end protections for Dreamers, tens of thousands of whom are essential health care workers.

So what would an effective federal response look like?

. . . .

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

Read the rest of Jeremy’s article at the link for his ideas on how to join immigration reform with economic expansion.

Makes sense to me!

PWS

02-28-21

CNN’S CHRISTIANE AMANPOUR INTERVIEWS NDPA SUPERSTAR 🌟 ANDREA MARTINEZ ON NEED FOR BIDEN’S IMMIGRATION REFORM BILL!

Amanpour & Martinez — CCN Anchor Christiane Amanpour & Immigration Attorney Andrea Martinez
SOURCE: CNN

Watch this video clip from CCN:

https://apple.news/A5fldUh3pTnWBhjhXUz6QOg

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

Thanks for speaking out Andrea! Andrea is a former Arlington Immigration Court intern and one of the “charter members” of the NDPA. As captured on this video, she was assaulted by ICE while trying to assist her child client in reuniting with his mother! A civil suit against the agent involved is pending.

🇺🇸🗽⚖️Due Process Forever!

PWS

02-27-21

⚖️🗽CREAMED AGAIN! — 1st Circuit Finds Errors Galore In BIA’s Denial Of Withholding To Honduran Woman: Credibility; Corroboration; Following Precedent; CAT Claim! — Molina-Diaz v. Wilkinson

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

http://media.ca1.uscourts.gov/pdf.opinions/15-2321P-01A.pdf

Molina-Diaz v. Wilkinson, 1st Cir., 02-25-02

PANEL: Howard, Chief Judge, and Kayatta, Circuit Judge.**Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel’s opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).

ATTORNEYS: Nancy J. Kelly, with whom John Willshire Carrera and Harvard Immigration & Refugee Clinic of Harvard Law School at Greater Boston Legal Services were on brief, for petitioner.

Stratton C. Strand, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas E. Ginsburg, Assistant Director, and Derek C. Julius, Senior Litigation Counsel, were on brief, for respondent.

OPINION BY: Chief Judge Howard

KEY QUOTE:

Petitioner Olga Araceli Molina- Diaz is a Honduran native and citizen who twice entered the United States without authorization. The government ordered her removed to Honduras, and an immigration judge (“IJ”) denied her subsequent application for withholding of removal (“Application”). Molina appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s order and denied Molina’s motion to reopen and remand. Molina now petitions this court to review the BIA’s decision. Because we agree that the IJ and BIA made legal errors, we grant the petition, vacate the removal order, and remand for further proceedings.

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

Folks, we’re not talking about obtuse principles of international law, complex statutory interpretation, or “cutting edge” legal concepts. No, this is about credibility, corroboration, following your own precedents (even when they might produce a result favorable to the respondent), and adjudicating a CAT claim.

These are the “bread and butter” of basic asylum and withholding adjudication that is the staple of most Immigration Court dockets. Not rocket science! Yet, once they got below the “caption line,” the BIA, a supposedly “expert tribunal,” got pretty much everything else wrong. With human life at stake, no less!

This isn’t just an “outlier.” It reveals deep systemic problems in a dysfunctional system that has been programmed to cut corners and deny relief. After 21 years as an EOIR Judge at every level, I know an “autopilot denial” when I see one.

This is clearly the product of a judge and a BIA panel that approached the case with a “we deny almost all Hondurans, it’s just a question of how” attitude. Because “the bottom line got to no,” obviously nobody paid much, if any, attention to what was above it. I suspect that if the staff attorney had drafted this as a grant or a remand, the BIA panel would have given it a more thorough and searching review.

Following your own precedents isn’t a matter that requires profound knowledge or amazing analytical skills. It just requires some level of basic expertise and an open mind — things that appear to be sorely lacking throughout today’s broken EOIR.

The flawed EOIR approach to claims for asylum and withholding, particularly those involving the Northern Triangle and women, is very costly, not only to the humans involved, but also to our justice system. This respondent reentered the U.S. in 2009, and her merits hearing before the IJ took place in 2012. A careful, proper analysis could well have resulted in a grant at that time.

Instead, this “plethora of errors,” created by EOIR’s corner cutting and obsession with denying claims, bounced around the system for nearly a decade before being “outed” by the Circuit Court — obviously the only judges involved who took the time to actually analyze the case in accordance with the law, the facts, and the arguments made by counsel. So, after nearly a decade, at three different levels of review, we’re basically back to “square one” with this case.

The case will be returned to the BIA who inevitably will return it to to the IJ for a new hearing that actually complies with the law and due process. Given the total dysfunction in the EOIR system, it’s could easily be around for another decade.

Getting it right at the first level is critically important in a high volume, yet life determining, system like the Immigration Courts! That’s why it’s so absolutely essential that Judge Garland replace the current BIA and many of the current trial judges with “practical experts;” judges selected on a merit-basis because of their understanding of immigration and human rights laws, demonstrated analytical skills, and who by experience and reputation are overwhelmingly committed to due process, fundamental fairness, treating respondents and their lawyers with respect and dignity, and getting the right result the first time around. “The best and the brightest,” if you will!

As this case that began well before Trump shows, the deterioration at EOIR has been underway across Administrations over the past two decades. It greatly accelerated and became more acute under Trump. That’s particularly true because “Trump AGs” drastically expanded the Immigration Courts and the BIA (while exponentially increasing the backlog), and now have appointed the majority of judges in the system — after just four years!

Compare that with the Obama Administration’s practice of taking an mind-boggling average of two years to fill IJ vacancies! And, then filling them almost all with “government insiders and former prosecutors” rather than some of the many renowned “practical scholars,” experienced clinicians, and notable litigators in the private/academic/NGO immigration/human rights sectors. They actually left behind unfilled judicial vacancies for Sessions to “pounce on.” Says all you really need to know about the “priority” of immigrant justice in the Obama Administration. The “good enough for government work” attitude that has replaced “guaranteeing fairness and due process for all” as the “EOIR Vision” needs to go, now!

🇺🇸⚖️🗽Due Process Forever! Achieving it in the Immigration Courts will be the “litmus test” of whether Judge Garland succeeds or fails in his new role as Attorney General! You can’t improve justice for all in America while running a “court system” that denies justice, often ignores the law, mocks due process, eschews best practices and common sense, and routinely disrespects the humanity of those appearing before it! All while running up a stunning 1.3 million case backlog! As Justice Sotomayor would say: “This is not justice!”

PWS

02-26-21

🇺🇸⚖️🗽Due Process Forever! Failed Courts Never!

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