⚖️ FOLLOWNG SCATHING REPORT ON ABUSE OF KIDS IN IMMIGRATION COURT, EOIR ANNOUNCES SOME REFORMS — Rekha Sharma-Crawford Reports!

Rekha Aharma-Crawford
Rekha Sharma-Crawford ESQUIRE
Partner and Co-Founder Sharma-Crawford Law
Kansas City, KS

Rekha writes on LinkedIn:

A major step towards acknowledging that the best interest of the child must play a critical role in immigration cases. This was an idea I raised over 10 years ago with my friend and colleague, the brilliant Lory Rosenberg. Later the idea again was put forward with two additional brilliant colleagues, Paul Schmidt and Susan Roy. Sometimes it takes a very long time, but the right approach can’t be hidden forever.  So pleased to see it is finally seeing some daylight.

Here’s the Memorandum from EOIR Director David  L.  Neal:

https://www.justice.gov/d9/2023-12/dm-24-01.pdf

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @  GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

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

As noted by my Round Table colleague “Sir Jeffrey” Chase, our Round Table has spoken out about the need for a separate Immigration Court system for children:

As you know, our Round Table signed on to a letter of support for proposed legislation to create a Children’s Immigration Court.

[Director Neal’s statement is] a positive administrative development.

Here’s my take:

  1. While progress is always welcome, this statement shrouds the concept of “best interest of the child” (“BIC”) with legal gobbledygook and bureaucratic doublespeak. (P. 3 of Neal Memo under “Legal Standards”).
  2. Here’s what a clear, correct statement on BIC would look like:

BIC, regardless of whether or not presented by a “Child Advocate” or incorporated in a “Best Interests Determination” (“BID”), can be directly relevant to issues of removability. For example, evidence of removability obtained by methods that clearly conflict with the BIC could be found unreliable or the result of “egregious misconduct” for the purposes of determining removability.

The BIC can also be highly relevant to issues of eligibility for relief. For example, a government or society that deprives certain children of all meaningful educational oportunities might well be engaging in persecution.

In addition, in NLPR cancellation cases, the BIC could be persuasive, even determinative, evidence that removal of a parent will result in “exceptional and extremely unusual hardship” to a USC or LPR child or children.

3) Finally, since the EOIR Director is an administrator, not a quasi-judicial official, his or her policies have a distinct “you can take it or leave it” effect in Immigration Court. Therefore ameliorative statements from the Director, no matter how well-intended, are only effective if the BIA is willing and able to insist on and enforce “best practices” on Immigration Judges, preferably through precedent decisions and reassigning cases away from those IJs who show repeated contempt for due process and best practices.

Unfortunately, the current version of the BIA has, as a body, shown neither much sympathy nor concern for the substantive and due process rights of asylum seekers and other immigrants in Immigration Court. Unless and until Garland “cleans house” and appoints a BIA where all Appellate Judges are immigration/human rights experts laser focused on due process and best practices in Immigration Court — and not afraid of enforcing them uniformly in individual cases and incorporating them in binding precedents — the Director’s latest somewhat ameliorative statement is likely to be as toothless in practice as past efforts.

To a large extent, that’s a “nutshell” of why Garland’s Immigration Courts are in dire failure that threatens our entire democracy.

Unfortunately, that we are three years into this Administration and Garland is still bumbling along with a BIA that largely represents the mistakes and shortcomings of his predecessors suggests that waiting for him to “get religion” on the need for expertise, due process, fundamental fairness, and best practices at EOIR will continue to be an exercise in “Waiting for Godot!”

Waiting for Godot
Immigration practitioners waiting for Garland to institute “due process, fundamental fairness, and best practices” as the sole mission of his EOIR “courts.” It could be a long wait. Very long! Too long!
Naseer’s Motley Group in The Rose Bowl
Merlaysamuel
Creative Commons Attribution-Share Alike 3.0
Waiting for Godot in Doon School.jpg Copy
[[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]]
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December 8, 2011

🇺🇸 Due Process Forever!

PWS

12-22-23

☠️ DERELICTION OF DUTY! — 9TH CIRCUIT JUDGES RIP BIA’S TOXIC “DEPORT AT ANY COST” CULTURE — “The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.”

Kangaroos
Some Article III Judges recognize that “deport at any cost” at EOIR is a “bad look” for American justice! 
https://www.flickr.com/photos/rasputin243/
Creative Commons License

In this case, involving a woman and her two children, EOIR engaged in “Aimless Docket Reshuffling” by unilaterally moving the respondents hearing to an earlier date — arguably a due process denial in and of itself given the coordination and preparation necessary to competently present merits cases in Immigration Court. Then, EOIR failed to give legally sufficient notice of the arbitrarily accelerated hearing — a common occurrence in this dysfunctional and poorly administered system, as most practitioners would tell you. 

Indeed, the defective notice was returned to EOIR, so the IJ knew that the respondent was never properly notified of the hearing. Nevertheless, ICE improperly moved for an in absentia order and the the IJ erroneously granted it.

Upon learning of the illegal “in absentia” order entered against her, the respondent promptly moved to reopen, providing unrebutted evidence of non-receipt of notice. The IJ erroneously denied the motion. 

On appeal, the BIA compounded this farce by wrongfully affirming the IJ’s clearly wrong decision. Instead of confessing error, OIL advanced frivolous arguments for dismissal, falsely claiming dilatory action by the respondent, even though there is no “time bar” on a motion to reopen for defective notice.

The Ninth Circuit summarily reversed in an (unfortunately) unpublished decision. Circuit Judges Friedland and Paez, obviously and justifiably upset by this totally preventable travesty, were motivated to enter a separate concurring opinion commenting on the unprofessional “clown show” 🤡 operating at EOIR:

FRIEDLAND, Circuit Judge, with whom Circuit Judge PAEZ joins, concurring:

When the date of a removal hearing changes, the Government is required to provide a Notice of Hearing (“NOH”) containing the new date and time. 8 U.S.C. § 1229(a)(2)(A). If a person fails to appear for her hearing, she shall be removed in absentia only “if the Service establishes by clear, unequivocal, and convincing evidence that the written notice [of the hearing] was so provided.” Id. § 1229a(b)(5)(A).

Here, when Ontiveros Lozano’s removal hearing date was moved up, the Government mailed her an NOH, but it was returned as undeliverable over a month before her scheduled hearing. Ontiveros Lozano therefore indisputably did not receive the required notice, and the Government knew this. Yet the Government requested and received an in absentia removal order against Ontiveros Lozano when she did not appear for her scheduled hearing. In doing so, the Government violated the explicit statutory requirement in § 1229a(b)(5)(A).

The Government now argues that Ontiveros Lozano’s removal proceedings should not be reopened because she was not diligent in discovering the Government’s conduct and because she has forfeited her challenge to the entry of the in absentia removal order.

The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.

Read the full opinion here:

9th Cir Absentia set aside

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

The full ugliness and dysfunction of EOIR and the DOJ are on display here:

  • Aimless Docket Reshuffling in action;
  • Defective notice;
  • Violation of statutory requirements;
  • Defective administration of justice;
  • Unethical actions by ICE counsel in requesting an in absentia order knowing full well that the respondent had never received notice;
  • Stunningly poor trial judging (2X);
  • Horrible appellate judging;
  • Frivolous defense of an unjust decision by OIL.

This system is broken! It’s promoting injustice and clogging the Article III Courts with poor quality work product by USG “judges” and attorneys who aren’t up to or well-qualified for their jobs. The focus on “removal at any cost” rather than due process and justice is unconstitutional and unethical. It comes from poor leadership from the Attorney General on down! The only question is why isn’t anybody in charge motivated to fix it!

A quarter century ago, the “EOIR vision” was a noble one: “Through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all!” It was even posted on the website! Not only has that noble vision disappeared, both literally and figuratively, but over the last two decades Administrations of both parties have degraded justice and functionality at EOIR — some intentionally, some negligently, sometimes a toxic combination of the two.

In the absence of Article I legislation, what EOIR and the DOJ immigration bureaucracy need is a thorough housecleaning, new dynamic, due-process-focused expert leadership, and better judges at both levels. Letting EOIR continue its “death spiral,” as the Biden Administration has done, is totally unacceptable!🤯

Many thanks and appreciation to one of our newest Round Table 🛡️ members, Judge Sandy Hom, recently retired from the New York Immigration Court, for spotting this unpublished opinion and forwarding it! It’s the kind of common purpose, collegiality, and teamwork that is largely absent from today’s dysfunctional EOIR!

🇺🇸 Due Process Forever!

PWS

12-07-23

⚖️🗽👏🙏 PRO BONO SPOTLIGHT: SPLC PRO BONO SUPREMES’ WIN GIVES ASYLUM APPLICANT A SECOND CHANCE — Round Table 🛡️⚔️ Also Helped!

 

From SPLC:

Estrella Santos-Zacaria has come a long way from San Pedro Soloma, Guatemala, a village nestled in the Sierra de los Cuchumatanes mountains and known as El Valle del Ensueño, or the Valley of Dreams.

For years, Santos-Zacaria dreamed desperately — of escape.

In 2008, she attempted to immigrate to the U.S., fearing that the violence she had experienced because of her sexual orientation and identity as a transgender woman could get her killed. Since then, she has been deported twice.

But in January, her case made its way to the U.S. Supreme Court. And on May 11, Santos-Zacaria won the right to further challenge her deportation — and the potential to start a new life in the U.S. Other immigrants facing deportation could benefit, as well, because the ruling helps clear a procedural obstacle for noncitizens seeking judicial review of rulings by the Board of Immigration Appeals (BIA), an administrative appellate body within the U.S. Department of Justice.

The Supreme Court’s decision, authored by Justice Ketanji Brown Jackson, also marks a notable step in its acknowledgment of transgender people. Santos-Zacaria’s chosen name, Estrella, was referenced alongside her former given name, and her proper pronouns were used throughout.

The case was the first initiated by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI) to reach the U.S. Supreme Court. SIFI provides pro bono legal representation to asylum seekers who are being held at immigrant detention centers in the Deep South.

“What Estrella’s won is the right to keep fighting,” said Peter Isbister, senior lead attorney for SIFI. “And that would not have been possible without her team of volunteer attorneys. Cases and clients like Estrella are why SIFI believes so deeply in having a pro bono program.”

Read More

In solidarity,

Your friends at the Southern Poverty Law Center

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

The Round Table filed an amicus brief supporting Estrella’s position before the Supremes.

⚖️🗽🛡⚔️ ON A ROLL — ROUND TABLE ON THE WINNING SIDE FOR THE 3RD TIME @ SUPREMES! — Santos-Zacaria v. Garland — Jurisdiction/Exhaustion — 9-0!

In her case, both the BIA and the 5th Circuit had gone out of the way NOT to meaningfully review life or death mistakes made in the Immigration Court. In doing so, they tossed aside the realities and roadblocks facing those seeking justice in Immigration Court and their representatives (if any, in a glaringly unfair system).

This case shows the critical importance of pro bono immigration assistance. These lower court Federal Judges focused not on constitutionally required due process and fundamental fairness, or on the vulnerable human life at stake, but rather on inventing ways NOT to provide fair hearings in some of the most important, perhaps the most important, cases coming before the Federal Justice system. 

Pro bono representation levels the playing field and exposes the poor performance of those whose sole focus should be individual justice, rather than “institutional task avoidance!”

🇺🇸 Due Process Forever!

PWS

11-26-23

🇺🇸 SHE’S RUNNING! — ROUND TABLE’S 🛡️ JUDGE CECELIA ESPENOZA SEEKS COLORADO STATE HOUSE SEAT!

Cecelia M. Espenoza
Hon. Cecelia M.Espenoza
Former Appellate Immigration Judge, BIA
Source:
Denverdemocrats.org
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I’m Running For the State House

 

I have spent my life serving our community by trying to create a more just, equitable and inclusive world. From my work as a judge striving to give everyone an equal opportunity for justice, to my work as a law professor training the next generation of legal minds, to my work as a local Democratic Party leader helping to elect progressive candidates, I have always answered the call to serve.

I am Cecelia Espenoza, and I am thrilled to announce that I have officially filed to represent North and West Denver in the Colorado State House!

I have seen the amazing results when the community works together to make a difference. My parents were migrant farmworkers who became small business owners. My father became a community icon as the first licensed Mexican-American barber. He created a space for all in our community to gather and enjoy life, even when things were hard. I promise that I will work to unite our community toward our shared goals and values: fairness, equality, and progress for all.

Will you join me as one of my first supporters with a $25, $50, $100 or $450 donation today to get my campaign off to a strong start?

We face so many issues in Colorado that make it harder for people to thrive. Our rent and housing costs have skyrocketed, leaving many of us without a safe and secure place to live. Our wages have not kept up with the spike in the cost-of-living. Too many of us lack access to affordable healthcare; adequate food; or the ability to pay down student loans. All of this while right-wing politicians try to undermine basic rights around reproductive healthcare, the LGBTQIA community, and access to the ballot box.

I’m running because the voters of House District 4 deserve a representative who will work to serve them and address issues, not serve themselves by posturing on social media and seeking the limelight. The real problems our community faces like gun-violence, housing costs, climate change, educational inequity, racism, and healthcare access demand a clear, mature, and reasoned look at changing policy. I promise that I will be a representative who puts the people of our community first.

Donate now to help me spread my message to the voters of Denver to make sure they know the choice they have next year.

I am proud of my record of getting things done to help others. I am proud to be a Democrat and to have helped so many other great candidates achieve success throughout my life. Now I need your help as an inaugural member of my team.

If you’ve made it this far and are in a financial position to be one of my inaugural donors your contribution will help me stand up a campaign and spread my message to the voters.

If there are any questions that aren’t answered by my website, or if you just want to grab a cup of coffee, you can call or text my cell phone at 703-989-9261 or email me at cecelia@cecelia4colorado.com

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Good luck, my friend and colleague! Thanks for taking on the challenge! We need more NDPA stars in elected positions at all levels, across our nation! 

🇺🇸 Due Process Forever!

PWS

11-18-23

⚖️ HON. “SIR JEFFREY” CHASE MINES GOLDEN NUGGETS FROM SLURRY OF DENIAL! — VARELA-CHAVARRIA v. GARLAND — 1st Cir.

Panning for Gold
Hon. “Sir Jeffrey” Chase does the hard, dirty work of sifting through the legal muck for golden nuggets of hope and enlightenment!
“The First Pan”
By by W. Sihmedtgen.
Public Realm

“Sir Jeffrey” writes:

In spite of the petition being denied, there is useful language on what constitutes persecution for a child, and in fn 6 on an IJ’s obligation to assist in delineating a PSG, whether or not the applicant is pro se.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Read the full decision here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1780P-01A.pdf

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

Even when the final result passes Circuit review, the BIA’s too often sloppy “any reason to deny” approach should be of grave concern to all who advocate for due process and fundamental fairness for asylum seekers.

🇺🇸 Due Process Forever!

PWS

11-17-23

⚖️👩🏻‍⚖️👨🏼‍⚖️ SOME FORMER IMMIGRATION JUDGES SPEAK OUT AGAINST DRACONIAN TEXAS BORDER MEASURE!

Texas Border
Abuse of migrants has a long ugly history in Texas.
Public Realm (1948)

“Sir Jeffrey” Chase forwarded coverage from the Dallas Morning News containing these quotes:

 

Former immigration judges

Two former federal immigration judges, appointed by Republican and

Democratic presidents, raised concerns over state judges being tasked with

handling immigration cases.

“It makes no more sense for a state magistrate trained in state law to engage in

the interpretation and application of federal immigration law than it does for a

federal immigration judge …trained in federal to engage in an interpretation

and application of Texas law,” said Bruce J. Einhorn, a former immigration

judge appointed by President George H.W. Bush in 1990.

“It’s hard to comment on something that’s just so plainly unlawful and plainly

unconstitutional,” said Rebecca Bowen Jamil, a former federal immigration

judge appointed by President Barack Obama in 2016. “The state court judge

doesn’t have the training — doesn’t have the expertise — to protect the

constitutional rights of that individual before them.”

Einhorn and Jamil were among dozens of former federal immigration

judges who signed a statement saying the proposal violates the law.

Dallas Morning News article 11.14

CLARIFICATION: While a number of members of the Round Table signed this letter in a “personal capacity,” the Round Table, as an organization did not take a position on this issue.

For a deeper dive into the history of “Juan Crow” racism in Texas — the truth that Gov. Greg Abbott and the GOP don’t want you to know, see, e.g.,  https://www.nbcnews.com/news/latino/history-racism-against-mexican-americans-clouds-texas-immigration-law-n766956.

Juan Crow in Texas
Signs like the one in this undated image were displayed at various restaurants and other pubic accommodations under a system known as “Juan Crow” laws.Russell Lee / Dolph Briscoe Center for American History

🇺🇸 Due Process Forever!

PWS

11-16-23

UPDATE FROM HON. “SIR JEFFREY” CHASE:

Hi all: The Texas state law was passed by both houses of the Texas legislature, and is expected to be signed into law.

The letter from 30 individual members of this group was specifically mentioned yesterday on CNN’s The Lead with Jake Tapper.

I think this link will take you to the section in which the former judges’ letter is mentioned (at the 2:52 mark).

Best, Jeff

DPF!

 

PWS

11-16-23

⚔️🛡️⚖️🗽👩🏽‍⚖️ ROUND TABLE AMONG ORGS ENDORSING THE BIPARTISAN CHILDREN’S IMMIGRATION COURT BILL! — Rep. Hillary Scholten (D-MI) Among Co-Sponsors!

Cecelia M. Espenoza
Hon. Cecelia M.Espenoza
Former Appellate Immigration Judge, BIA; Member, Round Table of Former Immigration Judges
Source:
Denverdemocrats.org
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

“Sir Jeffrey” Chase reports:

Hi all: The bipartisan Children’s Immigration Court bill that we endorsed was introduced today.

The press release of Sen. Michael Bennet included this quote from Cecelia!

“The most vulnerable people in immigration proceedings are unaccompanied children. The Immigration Court Efficiency and Children’s Court Act of 2023 not only improves the process for children, it also provides necessary support and guidance to the overburdened immigration court system to address the needs of these children,” said Cecelia M. Espenoza, Former Appellate Immigration Judge.

A link to the full press release is here:

https://www.bennet.senate.gov/public/index.cfm/press-releases?id=26F938C9-0426-41DA-8F25-1BF08FD8E4AE

And this accompanying list of sponsoring organizations includes the Round Table (at #28):

https://www.bennet.senate.gov/public/_cache/files/8/5/85527130-70b8-40ab-8324-4ecc466712c5/E717DE48CC2EA2E5166E595774B666E5.children-s-court-supportive-orgs.pdf

Feel free to amplify/share/distribute.

Thanks to all! – Jeff

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

Thanks to Sen. Michael Bennett (D-CO), Sen. Lisa Murkowski (R-Alaska), Rep. Dan Goldman (D-N.Y.), Rep. Maria Salazar (R-Fla.), Rep. Hillary Scholten (D-MI), and Rep. Lori Chavez-DeRemer (R-OR)! This is long, long overdue! A great bipartisan idea! 😎

Rep. Hillary Scholten (D-MI)
Credit: Ike Hayman
SOURCE: Wikipedia

Rep. Hillary Scholten, the only former EOIR attorney in Congress, and an indefatigable advocate for good government, due process, common sense, and the well-being of children had this to say:

“Let’s be clear about one thing–infants and children should not be in a situation where they have to stand trial in immigration court,” said Scholten. “We have a deeply broken immigration system in this country. But as we continue the long and complicated work for repairing it, of fighting for justice in a political climate that has grown callous to the suffering of children, the next best option is creating a court that works to accommodate their unique needs. As a mom, I’ll never stop fighting for these vulnerable kids.”

🇺🇸 Due Process Forever!

PWS

11-4-23

⚖️🗽👩🏽‍⚖️👨🏻‍⚖️ ROUND TABLE, GIBSON DUNN PRO BONO PROVIDE SUPREMES WITH EXPERT INPUT ON “NOTICE” ISSUE IN LATEST AMICUS BRIEF!  — Campos-Chaves v. Garland

Knightess
Knightess of the Round Table

Here’s a copy of the brief:

Notice Amicus—1737000-1737148-judges_amici briefly

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

Many thanks to all involved in this effort, particularly Richard Mark and the Pro Bono Team at Gibson Dunn. Will the DOJ go down for the third time on interrelated notice issues before the Supremes? What if the BIA followed the statute and held DHS fully accountable? What if due process, fundamental fairness, and best practices were the mission of EOIR? (Hint, they once were the “noble vision” of EOIR —  trashed by Administrations of both parties.)

🇺🇸 Due Process Forever!

PWS

10-31-23

⚖️🛡️ANOTHER ROUND TABLE AMICUS FILED — M.A. v Mayorkas!

Knightess
Knightess of the Round Table

Dan Kowalski reports:

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

Thanks to all involved! The Round Table is on a roll!🗽

🇺🇸 Due Process Forever!

PWS

10-10-23

⚖️🛡 LATEST NEWS  FROM THE ROUND TABLE:  “Round Table Files Amicus Brief in East Bay v. Biden”

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

From BIB daily:

http://www.bibdaily.com/

October 06, 2023

(1 min read)

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EAST BAY SANCTUARY COVENANT, et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, President of the United States, et al.,
Defendants-Appellants.

On Appeal from the United States District Court for the Northern District of California
Case No. 4:18-cv-06810-JST

BRIEF FOR AMICI CURIAE FORMER IMMIGRATION JUDGES & FORMER MEMBERS OF THE BOARD OF IMMIGRATION APPEALS IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

TAGS:

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

Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”

🇺🇸 Due Process Forever!

PWS

10-09-23

🗽⚖️🇺🇸⚔️🛡 ROUND TABLE (THANKS TO WILMER CUTLER PRO BONO) JOINS OTHER NGOS IN URGING SUPREMES TO PRESERVE MEANINGFUL JUDICIAL REVIEW FOR CANCELLATION!  (Wilkinson v. Garland) — Rae Ann Varona Reports for Law360:

Rae Ann Varona
Rae Ann Varona
Legal Reporter
Law360
PHOTO: Linkedin

Dan Kowalski over at LexisNexis Immigration Community helpfully forwarded the pdf’s of Rae Ann’s article and the three briefs. You can access them here:

Ex-Immigration Judges Back Trinidadian Man Before Justices – Law360

1718000-1718295-former eoir judges

1718000-1718295-domestic violence orgs

1718000-1718295-aila

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

Our Round Table, with the help of some of the greatest litigators and law firms out there, continues to provide key support for the NDPA and timely expertise to the Federal Courts and father Executive on all levels!

🇺🇸Due Process Forever!

PWS

09-08-23

⚖️🗽👩🏽‍⚖️👩🏽‍🏫 WITH HELP FROM OUR FRIENDS @ ROPES & GRAY, IMMIGRATION PROFESSORS & ROUND TABLE 🛡️ FILE AMICUS ON WITHHOLDING/NEXUS STANDARD OF PROOF IN 1ST CIR. — Paye v. Garland

Read the full brief here:

Paye [2023.8.25] Amici Brief (Law Profs & IJs & BIA members)

Here’s the “Statement of Interest:”

INTEREST OF THE AMICI CURIAE1

This brief represents the views of two groups of amici curiae. See Corporate

Disclosure Statement for names of amici curiae. The first group is comprised of thirty-two immigration law scholars and clinical professors. These amici teach immigration law and/or provide clinical instruction in law school clinics that provide representation to asylum seekers and noncitizens seeking relief under 8 U.S.C. § 1231 and 8 U.S.C § 1158. As such, amici are knowledgeable of the particular legal requirements of 8 U.S.C. § 1231 and 8 U.S.C § 1158 and have a special interest in the proper administration and interpretation of the nation’s immigration laws, particularly asylum and withholding of removal.

The second group is comprised of forty-one former immigration judges (“IJs”) and Board of Immigration Appeals (“BIA”) members who have collectively presided over thousands of removal proceedings and have interest in this case based on their many years of dedicated service administering the immigration laws of the United States. Based on this experience, amici believe that withholding of removal

1 Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici notes that all parties have consented to the filing of this brief.

Furthermore, pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici further certifies that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparation or submission of the brief, and no person, other than amici, their members, or counsel has contributed money intended to fund preparing or submitting the brief.

  -1-

Case: 23-1426 Document: 00118044713 Page: 13 Date Filed: 08/25/2023 Entry ID: 6587480

is the means whereby Congress provided for the United States to meet its international treaty obligation of “nonrefoulement” under Article 33 of the Refugee Convention. Withholding of removal is a vital legal tool upon which IJs rely to ensure that noncitizens appearing before them are not removed to countries for which they have proven it to be more likely than not that they have experienced (or will experience) persecution on account of a protected ground — an extremely high burden to meet. This relief is mandatory where the noncitizen’s burden of proof is met and does not lead to permanent status or derivative status for immediate family members, in contrast to asylum, which is a discretionary form of relief that grants a permanent status and derivative status for immediate family members.

Amici contend that the more lenient “a reason” standard, as applied to the nexus between the protected ground and the persecution for withholding (as opposed to the “at least one central reason” standard for asylum) requires IJs to order withholding in cases where evidence of nexus may be insufficient for a discretionary grant of asylum. Such an interpretation would provide greater protection from violating the international treaty obligation of nonrefoulement. The instant case, where Petitioner is ineligible for asylum but may be protected from severe future persecution by withholding of removal, presents exactly the context in which Congress intended for the lesser “a reason” nexus standard to apply. Addressing this question here provides an opportunity for this Court to affirm Congress’s clear

-2-

Case: 23-1426 Document: 00118044713 Page: 14 Date Filed: 08/25/2023 Entry ID: 6587480

intent, expressed in the statutory language of 8 U.S.C. § 1231(b)(3)(C), to establish protection against nonrefoulement for this noncitizen and many others who, for any number of reasons, are ineligible for the discretionary relief of asylum.

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Many thanks to all involved!

🇺🇸 Due Process Forever!

PWS

08-28-23

⚖️🗽 ATTENTION NDPA: TRAINING OPPORTUNITY: Special Immigrant Juvenile Status (“SIJS”) Webinar From National Association of Women Judges on September 6 @ 1:30 pm — Register Here!

SIJS Training
SIJS Training

Here’s the registration link:

https://nationalassociationwomenjudges.app.neoncrm.com/eventReg.jsp?event=278&

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Hon. Eliza Klein
Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times

My good friend and Round Table colleague, Judge (Ret.) Eliza Klein, is among the all-star faculty.

Please note that this is a “live only” webinar that will NOT be recorded or repeated. Register now at the above link!

🇺🇸 Due Process Forever!

PWS

08-25-23

🗽⚖️ BIA CONTINUES TO STRUGGLE WITH STANDARDS — Fortunately, WilmerHale (Tasha H. Bahal), Round Table 🛡️, 1st Cir. There To Straighten Things Out! — Murillo Morocho v. Garland — With Commentary From Hon. “Sir Jeffrey” Chase!

Kangaroos
“We don’t need no stinkin’ standards except how high to jump for DHS enforcement!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community: 

http://media.ca1.uscourts.gov/pdf.opinions/22-1881P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-cat-standard-of-review-murillo-morocho-v-garland

“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”

[Hats off to Tasha J. Bahal!]

Tasha Bahal ESQ
Tasha J. Bahal
Counsel
WilmerHale

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:

Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.

H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.

Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.

The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.

Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!

🇺🇸 Due Process Forever!

PWS

08-24-23

⚖️ LAW YOU CAN USE! — 1st Cir. & Hon. “Sir Jeffrey” Chase Combine To Provide Expert Guidance On How To Handle BIA’s Inexpert Treatment Of Experts! 👍🏼

 

Star Chamber Justice
Experts find the BIA’s treatment of expert witnesses to be unduly harsh!
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

https://www.jeffreyschase.com/blog/2023/7/28/expert-guidance-from-the-first-circuit-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Expert Guidance from the First Circuit

For Immigration Judges, country experts serve as the lens through which a confusing jumble of evidence becomes a clearer picture. No judge can be an expert on all countries; it is therefore by way of the country expert’s testimony that a determination can be made as to whether the asylum seeker’s predicament is a unique or a common one; a dispute is merely personal or possesses a political dimension; the home country’s government is truly likely to provide adequate protection; and why relocating within the country may or may not be reasonable.

However, Immigration Judges are provided remarkably little guidance on how to assess expert testimony. A 2020 decision of the U.S. Court of Appeals for the Ninth Circuit, Castillo v. Barr,1 illustrates the problem. In that case, both the Immigration Judge and the BIA chose to discount the testimony of a qualified country expert because his testimony was not corroborated by other evidence of record. As the Ninth Circuit noted, “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.”2 Obviously, this simple, logical rule should have been incorporated in a BIA precedent decision by now.

When attorneys SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire brought an appeal involving this issue with the U.S. Court of Appeals for the First Circuit, our Round Table of Former Immigration Judges was most happy to file an amicus brief in the matter. We used the opportunity to inform the court “how IJs and the BIA need, and lack, a clear standard for whether to admit—and how to weigh— expert evidence.”

Although the court issued an unpublished decision (and explained why it was precluded by Supreme Court precedent from establishing the uniform standard that we had requested), I believe the opinion offers wisdom on the topic that Immigration Judges might find useful in spite of its nonbinding nature. The case name is G.P. v. Garland, No. 21-2002 (1st Cir., July 13, 2023).

Rather than review the entire decision, in the hope of increased convenience, I have instead listed the issues raised in the case that are likely to arise in removal proceedings, and then summarized how the First Circuit addressed each issue.

The recency of the expert’s knowledge:

May an Immigration Judge discount an expert’s country knowledge as “stale” due to the passage of time since the expert’s last visit to the country in question or contact with its government’s officials?

In G.P., the court found no support for such approach where: (1) the record contained no evidence of changed conditions over the period of time in question; (2) the expert testified to the lack of significant changes in country conditions over that same time period; (3) such testimony regarding the lack of significant change went unchallenged by ICE, which did not call its own expert or offer other country evidence to the contrary; and (4) the conclusion was not contradicted by the petitioner.

The basis of the expert’s knowledge

Can an expert’s testimony be discounted for lack of firsthand “knowledge, research, or connections” to the country in question?

In G.P., the court pointed to the BIA’s own precedent decision in Matter of J-G-T- in which the Board adopted the Federal Rules of Evidence standard that an expert’s testimony is reliable when it is “`based on sufficient facts or data’ that the expert `has been made aware of or personally observed’ or from sources that `experts in the particular field would reasonably rely on.'”3

In addition to finding that the IJ had overlooked sources of firsthand knowledge, the court in G.P. found further error in the IJ’s failure to either mention or explain why sources that experts in the field would rely on that were mentioned by the expert in his voir dire, which included crime rates, DEA reports, and U.S. Department of State Country Reports, were not sufficient to credit the expert’s testimony.

The expert’s lack of personal knowledge of a specific criminal organization

Can an expert’s testimony be discredited where the expert lacked personal knowledge of the specific criminal organization that the applicant fears?

In G.P., the court found that the IJ erred in discounting the expert’s testimony for this reason. The court again referenced the Board’s statement in J-G-T- quoted above, and cited another BIA precedent, Matter of Vides Casanova, in which the Board held that an expert “need not have personal knowledge of the facts underlying” their opinion.4

Applying the above BIA guidance, the court observed that the expert witness learned specifics about the organization in question from reading the respondent’s affidavit, and importantly, that the facts contained in the respondent’s testimony and later testified to in court “were never challenged by the government or questioned by the IJ, who found G.P. credible.” The court added that “An expert cannot be ‘undermined by his reliance on facts . . . that have not been disputed’” (quoting from the Ninth Circuit’s decision in Castillo, supra at 1284).

The feared persecutors are based outside of the country of expertise

Can an expert’s testimony about a crime group based in the U.S. be discredited where the witness was qualified as an expert on organized crime in the Dominican Republic?

In G.P., although the group in question was based in New England, connected to a cartel based in Sinaloa, Mexico, and “served as a conduit between the Mexican drug cartels and customers in Northern New England,” the group did not fall outside of the witness’s area of expertise (i.e. organized crime in the Dominican Republic) where the expert testified to the Sinaloa Cartel’s strong presence in the Dominican Republic, influence over government officials there, and treatment of government cooperators.” The court therefore found that the IJ’s statement that the expert lacked direct knowledge of the criminal organization “mischaracterizes the evidence as a whole” and was not supported by substantial evidence of record.

Prior statements of the expert

How should a prior statement of the expert that is offered by ICE be treated by the IJ?

In G.P., ICE introduced a quote from the expert’s 2011 book in which he wrote that he “couldn’t honestly say that torture is something deportees [to the Dominican Republic] should expect.”

However, the First Circuit found error in the IJ’s reliance on the quote, because (1) the quote was in the context of an entirely different set of facts and employed a highly narrow definition of torture; (2) the expert was only asked whether he recalled the quote and to provide its context, and not whether he agreed with it; (3) the quote addressed the general risk of torture faced by deported noncitizens, and not the specific risk faced by G.P.; and (4) the IJ failed to explain why the 2011 book deserved significant weight when it was older than other evidence the IJ found to be stale.

Conclusion

Petitioner’s counsel has moved the First Circuit to publish the decision. But regardless of the outcome, counsel may wish to bring the court’s analysis to the attention of Immigration Judges, who in turn may find it highly useful in navigating the treatment of experts in cases before them.

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Hats off to SangYeob Kim and Gilles Bissonnette on their outstanding litigation in the First Circuit, which led to this satisfying decision. Our Round Table is most thankful to attorneys Adam Gershenson, Alex Robledo, Angela Dunning, Marc Suskin, Robby L.R. Saldaña, and Greg Merchant of the law firm of Cooley LLP, for their expert drafting of our amicus brief in this case.

Copyright 2023 by Jeffrey S. Chase. All Rights Reserved.

Notes

  1. 980 F.3d 1278 (9th Cir. 2020).
  2. Id. at 1284.
  3. Matter of J-G-T-, 28 I&N Dec. 97, 102 (BIA 2020) (quoting Fed. R. Evid. 702(b), 703).
  4. Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015). Interestingly, in VIdes Casanova, the country expert had been called by DHS to establish that the respondent was a persecutor of others. Under those circumstances, the BIA in its decision noted that an expert “is permitted to base her opinion on hearsay evidence and need not have personal knowledge of the facts underlying those opinions.”

JULY 28, 2023

Republished with permission

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The BIA spends far too much time cooking up bogus ways to deny asylum and other forms of protection. This leaves a “vacuum” on providing sound advice and needed guidance for effectively presenting and fairly analyzing the large untapped potential for more grants of protection currently “bouncing around the EOIR backlog” or alternatively being mindlessly rushed through “dedicated deterrence dockets” with neither time for advocates to properly prepare nor opportunity for thoughtful analysis by IJs! It’s a real (totally preventable) “lose-lose” for our justice system and asylum applicants!

Fortunately those from outside EOIR, including Article III Judges, subject matter experts like Judge Sir Jeffrey, and his loyal colleagues in the Round Table 🛡 have stepped in to fill the void.  Wouldn’t it be better (and easier) to just aggressively recruit and hire the right expert, experienced, due-process-focused candidates for EOIR judgeships in the first place?

🇺🇸 Due Process Forever!

PWS

07-30-23