2d Circuit – Page 2 – immigrationcourtside.com

2D CIR. TO NY & SIX OTHER SO-CALLED “SANCTUARY STATES:” Tough Noogies, Trump Rules!

https://apple.news/A3IAKzyGETMeEwekcWLIIkA

Priscilla Alvarez reports for CNN:

Court says Trump administration can withhold money from NYC, 7 states in ‘sanctuary cities’ fight

Updated 1:07 PM EST February 26, 2020

The Trump administration can withhold federal money from seven states, as well as New York City, over their cooperation on immigration enforcement, a federal appeals court ruled Wednesday.

The decision by the 2nd US Circuit Court of Appeals reversed a lower court ruling that blocked the Justice Department from withholding a key law enforcement grant the department said was available only to cities that complied with specific immigration enforcement measures.

The federal appeals court ruling comes amid an ongoing feud between the Trump administration and so-called “sanctuary cities,” which limit cooperation between local law enforcement and federal immigration authorities. Over recent weeks, the administration has stepped up its fight against sanctuary jurisdictions and taken measures like barring New York residents from enrolling in certain Trusted Traveler programs, such as Global Entry.

Judge Reena Raggi, writing on behalf of the unanimous 3-judge panel, acknowledged the divisive nature of the issue at hand, writing: “The case implicates several of the most divisive issues confronting our country and, consequently, filling daily news headlines: national immigration policy, the enforcement of immigration laws, the status of illegal aliens in this country, and the ability of States and localities to adopt policies on such matters contrary to, or at odds with, those of the federal government.”

The city of New York is a plaintiff in the lawsuit, along with New York, Connecticut, New Jersey, Washington, Massachusetts, Virginia and Rhode Island.

In July 2017, then-Attorney General Jeff Sessions announced that applicants for Edward Byrne Memorial Justice Assistance Grants would have to comply with federal immigration enforcement. States pushed back and sued over the move.

. . . .

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Read the complete article at the above link. Thanks for keeping us up to date, Priscilla! Love your timely and accessible reporting!

My “Quick Takes:”

This one is headed to the Supremes, as there is now a “Circuit split.”
Don’t expect this to have much effect on actual immigration enforcement.
- Coercing states and localities is unlikely to foster much meaningful cooperation.
- It’s more likely to simply channel resistance to the regime elsewhere.
- The affected jurisdictions always have the option of just taking a “pass” on “Byrne Grants.”
In any event, interior apprehensions are a minuscule part of the DHS civil enforcement program.
- They accounted for fewer than 100,000 removals during the last fiscal year.
- At that rate, it would take more than a century for DHS to remove the estimated 10+ million undocumented U.S residents.
On the other hand, this is a major “propaganda victory” for the regime. And, make no mistake, this was always about anti-immigrant propaganda not legitimate law enforcement.
- The Administration will be able to tout that Second Circuit Judge Reena Raggi bought their disingenuous “enforcement policy” argument “hook line and sinker.” (The DHS “Community Terrorism” program has actually been shown to inhibit legitimate law enforcement by making it much less likely that victims of domestic violence and gang crimes will report them to local law enforcement.)
- However, more thoughtful judges in the 7th Circuit and elsewhere have exposed the weaknesses of Judge Raggi’s reasoning.
It’s unlikely that the Supremes will resolve this before the November election.
- If Trump wins, the “Roberts Five” have already demonstrated their obsequiousness in the face of Trump’s war on immigrants.
- On the other hand, a Democratic Administration would be likely to withdraw this “punishment initiative” completely and try to reach a more harmonious working relationship with state and local law enforcement on immigration issues, thus “mooting” this litigation.

PWS

02-28-20

NEW FROM “THE ROUND TABLE WHERE DUE PROCESS REIGNS:” Velasco-Lopez v. Decker, 2d Cir., Issue: Shifting the Burden to ICE in Bond Hearings

Many, many thanks to pro bono superheroes CHRISTOPHER T. CASAMASSIMA and SOUVIK SAHA and all of our other great friends over at WILMER CUTLER for once again “making us look smart!”

Here’s the full brief:

Velasco-Lopez, CA2, Amicus

And here’s a summary of our argument excerpted from our brief:

INTRODUCTION AND ARGUMENT SUMMARY

Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.

1

Amici have filed substantially similar briefs in other cases involving burden of proof issues in proceedings under 8 U.S.C. § 1226(a). Here, no party or party’s counsel authored this brief in whole or in part, nor contributed money to preparing or submitting this brief. Only amici or their counsel contributed money to prepare or submit this brief. The parties have consented to the filing of this brief.
2

A complete list of amici is included in this brief’s addendum.

Case 19-2284, Document 93, 02/11/2020, 2776030, Page13 of 55

Such restraint violates the Due Process Clause “unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. Yet, federal law provides far greater protections to criminal defendants than it does to noncitizens in civil proceedings—even though the distinctions between criminal and non-criminal proceedings mean very little to a person sitting behind bars.

Accordingly, noncitizens already face significant hurdles in detention proceedings brought under 8 U.S.C. § 1226(a). At issue in this appeal is whether another, even higher and more fundamental, barrier to due process can be erected in this Circuit: do noncitizens bear the burden of justifying their freedom from detention? For noncitizens, the answer to this question is no mere technicality—it can mean the difference between freedom and confinement. This burden’s allocation, therefore, “reflects the value society places on individual liberty.” Addington v. Texas, 441 U.S. 418, 425 (1979).

Given their collective experience in adjudicating immigration bond hearings, amici are particularly well-suited to address the monumental question in this case. To that end, amici wish to share the following observations for this Court’s benefit:

-2-

Case 19-2284, Document 93, 02/11/2020, 2776030, Page14 of 55

First, noncitizens already enjoy fewer procedural protections than criminal defendants. We contrast the procedural rules for detaining criminal defendants and noncitizens to underscore the challenges that noncitizens face in immigration bond hearings, and to highlight the need for a presumption against detention as one of the last remaining bulwarks to protect noncitizens’ liberty.

Second, detention of noncitizens consumes the government’s already- limited administrative and judicial resources. Amici highlight the staggering costs that are associated with immigration detention, as well as the strain on immigration courts resulting from the unnecessary detention of noncitizens.

Third, contrary to the government’s position, placing the burden of proof on the government would not generate fiscal or administrative hardship. Amici advance that position with confidence because the government previously shouldered that exact burden over a fifteen-year period. Several of the amici served as Immigration Judges within that period and found that this older system did not cause additional costs or administrative hurdles.

Fourth, in amici’s experience, detaining noncitizens actually increases the burden on the immigration court system. While in detention, noncitizens face significant challenges in adequately preparing their cases. Further, the Executive Branch now utilizes “performance metrics” to encourage Immigration Judges to accelerate the fact-finding process in detention proceedings. With less time for

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Case 19-2284, Document 93, 02/11/2020, 2776030, Page15 of 55

individualized fact-finding, noncitizens will have even less opportunity to marshal the facts needed to satisfy the burden to avoid detention. Reallocating the burden of proof in immigration bond hearings, therefore, would reduce costs.

Fifth, and finally, amici offer alternatives to noncitizen detention that would inject much-needed resources to the immigration court system. The government’s aversion to such alternatives rest on a single statistic suggesting that the vast majority of noncitizens abscond upon release on bond. That statistic, however, is misleading and inconsistent with other available data, and bears little resemblance to the reality that amici encountered in years of adjudicating immigration cases.

Together, these observations should lead this Court to conclude that due process requires the government to make some sort of individualized showing before it may place noncitizens under lock and key.

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Once again it’s an amazing honor and privilege to join my wonderful sisters and brothers in our continuing team effort to restore and enhance Due Process in our U.S. Immigration Courts.

Knjightess — Knightess of the Round Table

Due Process Forever!

PWS

02-13-20

FINALLY, AN APPEALS COURT WITH SOME GUTS: 2D CIRCUIT STANDS UP TO REGIME ON “PUBLIC CHARGE” INJUNCTION!

https://apple.news/AxXENbYxMRByBiI8k3J3MQQ

DEEPTI HAJELA, reports for AP:

Appeals court keeps block of Trump immigration rule in place

A federal appeals court in New York on Wednesday rejected a motion from the Trump administration that would have allowed it to implement a policy connecting the use of public benefits with whether immigrants could become permanent residents.

The ruling from the 2nd U.S. Circuit Court of Appeals denied the administration’s motion to lift a temporary national injunction that had been issued by a New York district court in October after lawsuits had been filed against the new policy.

The new rule would potentially deny green cards to immigrants over their use of public benefits including Medicaid, food stamps and housing vouchers, as well as other factors.

The New York injunction was one of several that were issued around the time the rule had been scheduled to go into effect in October.

But a regional injunction issued in California and another national injunction issued in Washington have already been lifted by other federal appeals courts. That left New York’s as the only nationwide bar to the Trump administration putting the new rule into practice. An injunction in Illinois also is in effect, but applies only to that state.

The three-judge panel of the 2nd Circuit had heard arguments over the motion to lift the injunction on Tuesday.

Judges questioned the government’s attorney on the timing — why the injunction needed to be lifted at this point when the lawsuit itself would be heard by a judge in coming months.

Immigrants applying for permanent residency must show they wouldn’t be public charges, or burdens to the country.

The new policy significantly expands what factors would be considered to make that determination, and if it is decided that immigrants could potentially become public charges at any point in the future, that legal residency could be denied.

Roughly 544,000 people apply for green cards annually. According to the government, 382,000 are in categories that would make them subject to the new review.

Immigrants make up a small portion of those getting public benefits, since many are ineligible to get them because of their immigration status.

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Compare this with recent decisions by the 9^th and 4^th circuits that “rolled over and caved” to the regime’s disingenuous arguments that there was a pressing public interest in lifting the injunction. https://immigrationcourtside.com/2019/12/10/complicit-court-update-4th-circuit-joins-9th-in-tanking-for-trump-on-public-charge-rule-judges-harvie-wilkinson-paul-niemeyer-go-belly-up-for-trump-while-judge-pame/;https://immigrationcourtside.com/2019/12/06/complicit-9th-circuit-judges-continue-to-coddle-trump-this-time-legal-immigrants-are-the-victims-of-trumps-judicially-enabled-white-nationalist-agenda-judges-jay-bybee-sandra-i/.

The individual impact of these new policies could potentially be devastating to immigrants and their families: however, the overall public financial impact of throwing up new bars to permanent immigration would be minuscule, as pointed out in this article. The lack of any real emergency reason for exempting the Government from going through the full litigation process at the District Court level (where preliminary injunctions had been issued), as others must, was noted by dissenting judges in both circuits that “rolled” for Trump.

PWS

01-08-20

BIA GETS IT WRONG AGAIN: 2D CIR. SLAMS EOIR’S ERRONEOUS APPROACH TO “EQUITABLE TOLLING” — As the BIA Continues To Get The Fundamentals Wrong, Unethical Barr & Co. Push Already Stressed & Dysfunctional Immigration “Courts” For More & Faster Mistakes & More Unlawful Removals!

http://www.ca2.uscourts.gov/decisions/isysquery/2c04f16b-a109-44a1-8677-06d7451356bd/3/doc/18-204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2c04f16b-a109-44a1-8677-06d7451356bd/3/hilite/

EMELI KWASI ATTIPOE v. BARR, 2d. Cir., 12-19-19, published

PANEL: POOLER, LOHIER, and CARNEY, Circuit Judges.

OPINION BY: Judge Rosemary Pooler

KEY QUOTE:

Here, as in Iavorski, nothing in the text of Section 545(d)(2) itself, or in its
4 legislative history, indicates that Congress intended the appeal filing deadline to
5 be jurisdictional. To the contrary, the House Conference Report states that
6 “[u]nless the Attorney General finds reasonable evidence to the contrary, the
7 regulations must state that administrative appeals be made within 30 days, except
8 that the appellate body may, upon motion, extend such period up to 90 days, if good cause
9 is shown by the movant.” H.R. Rep. No. 101‐955 at 133 (emphasis added). The
10 legislative history thus indicates that Congress was amenable to the idea of
11 extending the time to file an appeal past the deadline upon a showing of good
12 And the BIA may, sua sponte, decide to accept late filings under the self‐
13 certification process. It could not accept any late filings—exceptional
14 circumstances or not—if the filing deadline truly was jurisdictional.
15 We therefore extend Iavorksi’s interpretation of Section 545(d)(1) to its
16 sister subsection, Section 545(d)(2), and hold that the BIA must consider the
17 principles of equitable tolling when an untimely appeal is filed and the petitioner
18 raises the issue, as Attipoe did here. We remand to the BIA to consider whether 15
1 equitable tolling allows consideration of Attipoe’s late‐filed appeal. The BIA is
2 free to develop the factors it will apply in considering equitable tolling, although
3 we note that it need not start from scratch. In Holland, the Supreme Court set out
4 standards for courts to apply in determining whether equitable tolling is
5 appropriate: (1) a showing that a petitioner “has been pursuing his rights
6 diligently, and (2) that some extraordinary circumstance stood in his way.” 560
7 S. at 649 (internal quotation marks omitted). And in the context of a late
8 motion to reopen, we have held that petitioners seeking equitable tolling must
9 demonstrate (1) that their constitutional rights to due process were violated by
10 the conduct of counsel; and (2) that they exercised due diligence during the
11 putative tolling period. Iavorski, 232 F.3d at 135; see also Rashid v. Mukasey, 533
12 3d 127, 132 (2d Cir. 2008) (requiring that a petitioner prove diligence during
13 “both the period of time before the ineffective assistance of counsel was or
14 should have been discovered and the period from that point until the motion to
15 reopen is filed”); Cekic v. I.N.S., 435 F.3d 167, 170 (2d Cir. 2006) (requiring that
16 petitioner “affirmatively demonstrate that he exercised reasonable due diligence
17 during the time period sought to be tolled”). After it determines what the

16

1 2 3 4 5 6 7 8

standards for equitable tolling under Section 1003.38 are, the BIA should determine whether Attipoe satisfies those standards.

CONCLUSION

For the reasons given above, the petition is granted, the BIA’s decision is vacated, and this matter remanded to the BIA for further proceedings consistent with this opinion.

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An honest, competent Attorney General would make fixing the glaring legal, quality control, and Due Process problems with the BIA’s performance “job one.”

Instead, White Nationalist political hacks Sessions, Whitaker, and Barr have maliciously pushed the BIA and the Immigration Courts to rush more defective unprofessional work product out the door faster, thereby guaranteeing unconstitutional miscarriages of justice and numerous wrongful removals.

Improper, mindless, designed to fail “haste makes waste” gimmicks by the regime actually make the astounding 1.3 million case Immigration Court backlog much much worse, rather than addressing it in a rational and professional manner consistent with Due Process of law.

That’s especially true in a system where many individuals are improperly and unconstitutionally forced to appear without assistance of counsel and many others suffer from “underperformance” of counsel in a totally stressed and unfair system where the problems are overwhelmingly caused by our Government‘s “maliciously incompetent” performance, but the consequences fall almost exclusively and most heavily on the individual victims of U.S. Government malfeasance.

The idea the the BIA deserves “deference” as a fair, impartial, “expert” tribunal is beyond absurd. It’s a flat out abdication of legal duty by the Article III Courts of Appeals. When will they finally put a stop to this mockery of justice and remove the biased, unethical, and malicious DOJ prosecutor from improper and unconstitutional control over the Immigration “Courts?” How many illegal removals on their watch are too many for the complicit and privileged “life-tenured ones?”

What if it were them or their families suffering and being abused in this ongoing national disgrace that passes for a “court system?”

PWS

12-20-19

WRONG AGAIN: 2D CIR. SCHOOLS BIA ON BURDEN OF PROOF! — ALOM v. WHITAKER — BIA Blows Basics Again As System Crumbles!

17-2627_opn

Alom v. Whitaker, 2d Cir., 12-17-18, Published

PANEL: HALL, LOHIER, Circuit Judges, and RESTANI, Judge.

Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation.

OPINION BY: Per Curiam

KEY QUOTE:

In the present case, the BIA expressly stated that “[w]hether a marriage was entered into in good faith is a factual question” subject to clear error review. CAR 177. And at the end of its decision, it emphasized that it could not “reverse an Immigration Judge’s decision simply because the facts could have been viewed differently,” concluding that it would not disturb an IJ’s ruling if it “was based on a permissible view of the evidence.” CAR 178. But these statements conflict with the BIA’s published authority holding that where the question is whether established facts meet a legal standard, the BIA may weigh the evidence differently than the IJ. See In re A-S-B-, 24 I. & N. Dec. at 497. Here, the established facts—subject to clear error review by the BIA—were that the couple married in Bangladesh in mid-2003, barely resided together during their marriage, divorced six months after Alom’s entry to the United States in 2005, and had no children or demonstrable marital property. But the BIA failed to acknowledge the de novo standard applicable to the mixed question of whether the established facts were sufficient to establish a good faith marriage under § 1186a(c)(4)(B). In fact, the BIA’s commentary implies that it applied only clear error review to the entirety of the good faith marriage determination (i.e., whether the established facts demonstrated that Alom entered his marriage in good faith) and did not contemplate its authority to reweigh the evidence or to conclude that the IJ’s legal conclusions were insufficient. See id. In sum, although the BIA properly reviewed the IJ’s credibility and other factual findings for clear error, it erred by not treating the ultimate determination of whether Alom met his burden as a mixed question of law and fact subject to de novo review. See, e.g., In re Moody, 2012 BIA LEXIS 40, at *1–2. Accordingly, we grant the petition and remand for the BIA to apply the appropriate standards of review. See Upatcha, 849 F.3d at 185–87.

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Speeding up a system that hasn’t mastered the basics of the law and due process. A prescription for disaster. An appellate body that doesn’t know what standards it’s applying (and this is hardly a “new” provision) is in deep trouble, as are those judges and litigants who look to the BIA for “expert” guidance in the law. And, it’s not going to be fixed by “know nothing” politicos at the DOJ!

PWS

12-23-18

THE GIBSON REPORT 07-23-18 — COMPILED BY ELIZABETH GIBSON, ESQUIRE, NY LEGAL ASSISTANCE GROUP — LEAD ITEM – 2D CIR. SAYS BIA WRONG AGAIN, THIS TIME ON NY 3RD DEGREE MARIHUANA SALES!

THE GIBSON REPORT 07-25-18

THE GIBSON REPORT 07-23-18

TOP UPDATES

3d Degree Marijuana Sale Not an Ag Fel (NYPL 221.45) & realistic probability

2nd Cir: “The BIA decision rested on the observation that there was no “realistic probability” that New York would apply NYPL §221.45 to conduct outside the generic federal felony. That was error because the state statute on its face punishes conduct classified as a federal misdemeanor.”

Immigration cop shortage and a caution against hiring too quickly

WaPo: Customs and Border Protection (CBP) remains below authorized levels despite increasing the job applications received, cutting the time to hire and boosting the percentage of applicants employed.

New G-28 and I-765 Forms

USCIS just released a new version of the G-28 and I-765 and will no longer accept previous versions starting September 17th

Impact of Sessions’ asylum move already felt at border

CNN: Immigrants are already being turned away at the border under Attorney General Jeff Sessions’ recent reinterpretation of asylum law. And advocates for them fear there may be no end to it anytime soon.

Immigrant Children Describe Hunger and Cold in Detention

AP: The children’s descriptions of various facilities are part of a voluminous and at times scathing report filed in federal court this week in Los Angeles in a case over whether the Trump administration is meeting its obligations under a long-standing settlement governing how young immigrants should be treated in custody.

City of Fear

NYMag: In the eight months following Donald Trump’s inauguration, ICE arrests in the region jumped by 67 percent compared to the same period in the previous year, and arrests of immigrants with no criminal convictions increased 225 percent. During that time, ICE arrested 2,031 people in its New York “area of responsibility,” which includes the five boroughs and surrounding counties. These aren’t unprecedented numbers: ICE arrested almost four times as many people in 2010 in New York as it did last year, and it picks up far fewer people here than in other parts of the country.

A fate worse than separation awaits Central American families

Seattle Times: Under two court orders, the government is now reuniting migrant children with their mothers. Although the California court that ordered the reunification may permit continued detention of the families until their asylum claims can be decided, something worse than separation or detention awaits those mothers who are deported: rape and death.

The Trump Administration Is Working to Deport More Legal Immigrants

MJ: Earlier this month, as outrage continued over the Trump administration’s family separation policies, another immigration agency quietly introduced several changes that could threaten even more immigrants, many of them here legally, with deportation.

Chasing Down the Rumors: EOIR Hotline Once Again Includes Names of Immigration Judges

EOIR is once again including the names of immigration judges on its automated case status hotline, reversing course following complaints over the names being removed from the system in March 2018. AILA Doc. No. 16112144

Update on VTC at Varick Street

AILA: Despite advocacy, NY Field Officer Director Tom Decker has made no moves to change the new policy that all NYC detained cases will now be conducted via video teleconferencing (“VTC”) for all hearings.

New York City Bar Issues Recommendations Regarding ICE Enforcement in New York State Courthouses

The New York City Bar issued a report with recommendations on the increasing number of ICE civil arrests being conducted in and around New York State courthouses, stating that if continued, “this practice poses a threat to the New York State court system’s ability to ensure access to justice….” AILA Doc. No. 18072303

Think Immigration: The President’s Proposal to Eliminate Due Process at the Border

In this blog post, AILA Policy Counsel Jason Boyd highlights recent tweets from the president that attack due process for asylum seekers and explains how and why, if implemented, such changes would violate U.S. asylum laws. AILA Doc. No. 18071636

LITIGATION/CASELAW/RULES/MEMOS

District Court Judge Orders Reunification of Parents and Children

On 7/16/18, Judge Dana Sabraw granted an interim stay of removal for class members who may be subject to deportation. (Ms. L.; et al., v. ICE, 7/16/18) AILA Doc. No. 18060800

ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro-Tum

ICE provides guidance to OPLA attorneys litigating administrative closure in the wake of the Attorney General’s precedent decision in Matter of Castro-Tum. Guidance obtained from the blog, Immigration Courtside. AILA Doc. No. 18072074

DHS Announces Extension of TPS for Somalia for 18 Months

DHS announced the extension of the Temporary Protected Status (TPS) designation for Somalia for 18 months, through March 17, 2020. Further details, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice. AILA Doc. No. 18071931

EOIR Provides User Manual for Expanded Electronic Filing Pilot

EOIR provided a user manual on its expanded electronic filing pilot that explains the procedures for participation. Participation in the pilot program is on a voluntary basis, and pilot participants must adhere to the procedures in this manual, effective July 16, 2018. AILA Doc. No. 18072072

2018 USCIS Form Updates

RESOURCES

BIA Style Manual: A Guide to Drafting Board Decisions

Pereira v. Sessions: Challenging the Validity of Notices to Appear Lacking Time-and-Place Information

The Council and CLINIC Provide Practice Advisory on Strategies and Considerations in the Wake of Pereira v. Sessions

Practice Alert: Pereira v. Sessions Guidance to Immigration Judges

Your Guide to Representing Foreign-Born Clients Facing Criminal Charges

The Council Provides Fact Sheet on How USCIS Estimates Application and Petition Processing Times

CRS Legal Sidebar on U.S. Immigration Laws Regulating the Admission and Exclusion of Noncitizens at the Border

Safe Texting with Clients

AILA Policy Brief: New USCIS Notice to Appear Guidance

EVENTS

7/26/18 Defending Immigration Removal Proceedings 2018
7/26/18 Seminar on NTA Memo
7/26/18 Implicit Bias in the Legal Profession
7/27/18 Music: SANCTUARY – Season Finale
8/2/18 Seminar on NTA Memo Part2
8/9/18 How to File Winning Appeals with the BIA and AAO
9/12/18 Improving Productivity and Time Management
9/26/18 Representing Children in Immigration Matters 2018: Effective Advocacy and Best Practices
11/26-28/18 CLINIC & NITA “Advocacy in Immigration Matters”

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Ah, another day, another major mistake by the BIA affecting Due Process and individuals’ lives. Sadly, nobody seems interested in solving the problem except the “New Due Process Army.” Absurdly, scofflow, child abuser Attorney General Jeff Sessions seeks to further truncate immigrants’ rights and to “speed up” an already broken system even as the wheels come off! The Second Circuit case is Hylton v. Sessions.

PWS

07-25-18

2D CIR. ZAPS BIA ON RETROACTIVITY — OBEYA V. SESSIONS

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/09/ca2-on-retroactivity-obeya-v-sessions.aspx

Dan Kowalski, Editor @ LexisNexis Immigration Community sends this item:

Obeya v. Sessions, Mar. 8, 2018 – “Clement Obeya, a lawful permanent resident of the United States, was convicted of petit larceny under New York law. The government sought to remove Obeya for his conviction, treating it as a “crime involving moral turpitude.” The Immigration Judge and Board of Immigration Appeals found that Obeya was removable based on his conviction, but this Court remanded due to the agency’s failure to apply BIA precedent holding that larceny involves moral turpitude only when it is committed with the intent to deprive the owner of property permanently. On remand, the BIA again found Obeya removable, holding that his offense involved moral turpitude by applying a new rule, announced in another case that same day, expanding the types of larceny that qualify as such crimes. Obeya challenges the BIA’s retroactive application of that rule to his case. We GRANT review and REVERSE the BIA’s order.”

[Hats off to Richard W. Mark!]

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Go on over to LexisNexis at the above link for the link to the 2d Circuit’s full decision.

As Gonzo & Co. move to speed up the Deportation Railway, the current quality control problems evident at the BIA, illustrated by decisions like this, will be multiplied.

PWS

08-09-18

“GOOD ENOUGH FOR GOVERNMENT WORK” – 2d CIR. GIVES “CHEVRON DEFERENCE” TO BIA’S Matter of L-A-C-, 26 I. & N. Dec. 516 (B.I.A. 2015) – Migrants Have No Right to Advance Notice Of Required Corroboration! – Wei Sun v. Sessions

CA2-WeiSunvSessions

Wei Sun v. Sessions, 2d Cir., 02-23-18, published

PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.

OPINION BY: Judge Chin

KEY QUOTE/SUMMARY:

Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.

The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.

ANOTHER KEY QUOTE:

Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).

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So, here’s what Chevron really says:

“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”

But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.”

And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.

Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made. Seems like a combination of fundamental fairness and common sense.

There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.

Here’s my previous post on Justice Gorsuch and Chevron:

https://wp.me/p8eeJm-eT

PWS

02-25-18

UNPUBLISHED 2D CIR REMINDS BIA THAT “PERSECUTION”DOESN’T REQUIRE ACTUAL PHYSICAL HARM — Mann v. Sessions

MANN AKA v. SESSIONS III | FindLaw

KEY QUOTE:

“Were the only grounds available to Mann those of future persecution, we would be inclined to affirm. But however unsuccessful Mann’s case may be with respect to future persecution, without a full consideration of the first prong of “persecution”, that is, of “past persecution”, the IJ’s analysis is incomplete, and thus the result in this suit invalid. In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate.

In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate. Poradisova, 420 F.3d at 79-80. Past persecution can be established by harm other than threats to life or freedom, including “non-life-threatening violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006). And, while the harm must be severe, rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006), it is sufficient, in order to show past persecution, that the applicant was “within the zone of risk when [a] family member was harmed, and suffered some continuing hardship after the incident.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).

Mann’s claim of past persecution rested on the following incidents: Mann and his brother were longtime members of the Congress Party. Members of opposition parties, the Akali Dal Party and the Bharatiya Janata Party (“BJP”) had successively solicited Mann and his brother’s departure from the Congress Party to join their parties. After Mann and his brother refused to depart the Congress Party, the opposition party members stopped Mann and his brother in the street and assaulted Mann’s brother. At the time of the assault, both Mann and his brother were in a car in the middle of doing political work. Mann managed to escape the car and their attackers. His brother, however, was severely injured: he both lost a leg and suffered mental incapacitation. Subsequently, Mann fled his hometown, residing in Chandigarh, a neighboring city, for two months, and, after that, moved to Delhi. During that time, his family was responsible for caring for his brother’s permanent disabilities and injuries.

Upon review, the IJ found the fact that Mann himself had not suffered physical harm to be dispositive of his past persecution claim. Yet physical harm is not always needed for a showing of past persecution. And, it is not required in an analysis undertaken under Tao Jiang’s “zone of risk” and “continuing hardship” tests.

Because (i) the IJ’s analysis does not directly address the question of whether Mann was sufficiently within “the zone of risk” when a family member (here, his brother) was seriously harmed, and, (ii) it is certainly conceivable that on direct reconsideration Mann’s flight from his hometown and help to his family in caring for his brother constitutes the sufferance of “some continuing hardship,” we hereby GRANT Mann’s petition for review, and VACATE the decision of the BIA. We REMAND Mann’s claim of persecution to the BIA for further consideration in light of Tao Jiang’s “zone of risk” and “continuing hardship” requirements.”

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Another example of faulty asylum analysis by the BIA. Why does the Supreme Court require Federal Courts to “defer” to a supposedly “expert” administrative tribunal that all too often appears to have less expertise in applying asylum law than the Article III Courts? Also, why doesn’t the Second Circuit publish helpful cases like this so that they can be widely cited and used as a tool to improve BIA adjudications?

According to the UN Handbook, credible asylum seekers should be given “the benefit of the doubt.” That’s not happening in some Immigration Courts and on some BIA panels.Why not? What’s the excuse?

Just another example of why we need an independent Article I Immigration Court. And, we need a diverse BIA with real expertise and an overriding commitment to fairness, due process, careful appellate adjudication, and correct application of human rights laws.

PWS

09-11-17

2D CIR Raps BIA, USIJ For Applying Wrong Tests For Agfel —- NY 5th Degree Sale Of A Controlled Substance Not A “Drug Trafficking Crime” — Respondent Eligible For Cancellation — KENNARD GARVIN HARBIN v. JEFFERSON SESSIONS III

http://caselaw.findlaw.com/us-2nd-circuit/1865217.html

“We hold that NYPL § 220.31 defines a single crime and is therefore an “indivisible” statute. Accordingly, the agency should have applied the so-called “categorical approach,” which looks to the statutory definition of the offense of conviction, rather than the particulars of an individual’s behavior, to determine whether a prior conviction constitutes an aggravated felony. See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Now applying the categorical approach, we conclude that Harbin’s conviction under the NYPL § 220.31 did not constitute a commission of an aggravated felony. Harbin’s § 220.31 conviction therefore did not bar him from seeking cancellation of removal and asylum.”

PANEL: Circuit Judges CABRANES, POOLER, and PARKER.

OPINION BY: Judge Pooler.

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When will they ever learn, when will they ever learn? Attempts by U.S. Immigration Judges and the BIA to “blow by” proper application of “divisibility analysis” and the “categorical approach” in an effort to maximize removals under the “aggravated felony” provisions of the INA continue to draw criticism from higher court judges. However, they probably are “less career threatening” with respect to the BIA’s relationship to their political bosses at the DOJ. Whoever heard of a due process court system being owned and operated by the chief prosecutor? And, nobody can doubt that Attorney General Jeff Sessions sees himself as the Chief Prosecutor of migrants in the United States. But, to be fair, the last Attorney General to actually attempt to let the BIA function as an an independent quasi-judicial body was the late Janet Reno. And, that was 17 years ago.

PWS

06-23-17

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Here’s the full brief:

And here’s a summary of our argument excerpted from our brief:

Due Process Forever!

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