"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
A federal appeals court late Tuesday ruled against Texas in its bitter clash with the federal government, deciding that a law allowing the state to arrest and deport migrants could not be implemented while the courts wrestled with the question of whether it is legal.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which has a reputation for conservative rulings, sided in its 2-to-1 decision with lawyers for the Biden administration who have argued that the law violates the U.S. Constitution and decades of legal precedent.
The panel’s majority opinion left in place an injunction imposed last month by a lower court in Austin, which found that the federal government was likely to succeed in its arguments against the law.
A three-judge appeals panel will hear arguments on Wednesday in the power struggle between Texas and the federal government following a shock reversal that once again blocked a new state law allowing local police to arrest migrants at the border – just hours after the US supreme court had decided it could go ahead.
A federal appeals court late on Tuesday issued an order preventing Texas from implementing its plans to defy the Department of Justice and take the power for Texas law enforcement to arrest people suspected of entering the US illegally, which is normally the jurisdiction of the federal immigration authorities.
The White House had strongly criticized the supreme court on Tuesday afternoon after a ruling that would have allowed what it called a “harmful and unconstitutional” Texas immigration law to go into effect.
The supreme court order had rejected an emergency application from the Biden administration, which says the law is a clear violation of federal authority that would cause chaos.
The decision by the fifth US circuit court of appeals that followed on Tuesday night itself came just weeks after a panel on the same appeals court hearing the case on Wednesday had cleared the way for Texas to enforce the law, known as SB4, by putting a pause on a lower judge’s injunction.
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Read the complete article at the link.
The “ghosts of John Calhoun” are taking over our system! And, almost everyone’s focused on the legal minutiae and procedural gobbledygook, while ignoring the big picture, which should be a “no brainer” rejection of Texas’s existentially dangerous, yet essentially ham-handed, attempt at “nullification!”
As pointed out cogently by The Hope Border Institute (issued after the Supremes’ “copped out,” but prior to 5th Cir.’s reversal of its prior order, thus temporarily blocking SB 4) the racist, unconstitutional intent behind “SB 4” is a crystal clear “no brainer:”
THE HOPE BORDER INSTITUTE EXPRESSES GRAVE CONCERNS FOLLOWING SUPREME COURT’S DECISION TO LET SB4 ENTER INTO FORCE
EL PASO, TEXAS – The Supreme Court’s decision to let Texas enforce SB4 as it continues to be litigated is fundamentally wrong and will have grave consequences. Today’s ruling will permit the State of Texas to create an illegal parallel deportation system and ramp up its project to criminalize migration and now all people of color in the state.
SB4 will unequivocally create an environment of fear and distrust in local Texas communities, erode welcoming efforts, and legitimize racial profiling. The federal government must challenge Operation Lone Star once and for all.
In response to this decision and Texas’ targeting of migrant hospitality, all are invited this Thursday, March 21 at 6:30 pm MT to ‘Do Not Be Afraid’ March and Vigil for Human Dignity, a moment of community prayer and resistance. We will denounce Texas’ efforts to criminalize migration and humanitarian relief efforts, affirm our welcoming borderland community, remember those dying at the border, and demand humane solutions.
“The Supreme Court decision to let the unconstitutional and racist SB 4 enter into effect is gravely serious and a sign of the urgent need to advance policies that uphold human dignity,” said Dylan Corbett, Executive Director of the Hope Border Institute. “This legislation will do nothing but harm communities across Texas, and other states will follow suit. I call everyone to join us on the evening of Thursday, March 21 to march in resistance and reject this campaign of hate.”
Three Lemons By Auguste Renoir (1918} Public Realm The BIA pulls three lemons on an epic judging fail that left a sour taste in the mouths of Fifth Circuit Judges!
Dan Kowalski reports for LexisNexis Immigration Community:
“Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.”
[Hats way off to Alison Lo, Jonathan Cooper and Chuck Roth!]
Congrats to this all-star NDPA litigation team. Once again, the expertise and scholarship in asylum and immigration law is on the “outside,” the NDPA, rather than at EOIR where it is so much needed!
Judge Higginbotham is a Reagan appointee. Judge Graves was appointed by Obama. Judge Douglas is a Biden appointee.
Here’s what the “coveted trifecta of bad judging” looks like:
The BIA:
1) misapplied prevailing case law,
2) disregarded crucial evidence, and
3) failed to adequately support its decisions!
My only question is: Did they manage to get the ”A#” right?
Golden nugget: The 5th Circuit recognizes that under the Supremes’ decision in Cardoza-Fonseca:“A ‘reasonable degree’ [for establishing a “well founded fear”] means a ten percent chance.” This “seminal rule” is violated by BIA panels and Immigration Judges across the nation on a daily basis. It is also widely ignored by many Circuit panels.
Unlike the BIA, Judge Higgenbotham carefully and clearly explains how threats other than physical injury can amount to persecution — another “seminal rule” that too many EOIR adjudicators routinely ignore.
By characterizing MS-13’s threats against Argueta-Hernandez and his family as
solely extortion, BIA disregards that he needed only to present “‘some
particularized connection between the feared persecution’” and the
protected ground in which his application for relief relies. . . . Such a rigorous standard would largely render nugatory the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).”).
Precisely! Ignoring Cardoza-Fonseca and their own binding precedent in Matter of Mogharrabi is what the BIA does frequently in “manipulating the nexus requirement” to deny meritorious claims to qualified refugees who face real harm! It’s all part of the toxic anti-asylum bias and “any reason to deny culture” that still permeates EOIR under Garland!
The BIA is not allowed to “presume,” as they effectively did in M-R-M-S-, the lack of qualifying motivation in “family based” psg cases and place an undue burden on the respondent to “prove” otherwise.
The panel also reams out the BIA for failure to follow basic rules and precedents requiring a separate CAT analysis.
Unlike the legal gobbldygook, obfuscation, doublespeak, and “canned” language that plagues many BIA opinions, Judge Higginbotham offers a clear, understandable, clinical explanation of asylum law and how it should be applied to what is actually a recurring situation in asylum law!
Reading this very clear opinion, I couldn’t help but feel that it was a panel of “general jurisdiction” Federal Judges from a so-called “conservative Circuit” who understood the complexity and nuances of asylum law, while the BIA Appellate Judges were the “rank amateurs.” This reflects a criticism oft made by my Round Table colleague Hon. “Sir Jeffrey” Chasethat EOIR’s asylum training is grotesquely substandard — far below that readily available in the “private/NGO/academic” sector! What possible excuse could there be for this ongoing travesty at DOJ?
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges. His consistent, outspoken criticism of EOIR’s poor asylum training is proving all too true on a daily basis!
AG Garland continues to show a truly (and disturbingly) remarkable tolerance for poor judicial performance by his subordinates at the BIA. At the same time, he shows little, if any, concern for the deadly devastating impact of that bad judging on human lives and the way it corrodes our entire legal system!
The glaring, life-threatening legal and operational problems at EOIR are solvable. We should all be asking why, after three years in office, a Dem Administration has made such feeble efforts to bring long overdue leadership, substantive, and operational changes to “America’s worst court system?” Well into what was supposed to be a “reform” Administration, EOIR remains a steeped in the “culture of denial and bias against asylum seekers” actively furthered by the Trump Administration and NOT effectively addressed by Garland (although he concededly has made a few improvements)!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” Failure doesn’t seem to bother Garland. Maybe it should! PHOTO: Wikipedia Commons
Dan Kowalski reports from LexisNexis Immigration community on the latest screwups from the Article IIIs:
“Mario Fonseca-Fonseca, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Fonseca-Fonseca sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof. … Today, we clarify that prima facie eligibility for relief requires only a threshold showing of eligibility—a reasonable likelihood that the petitioner would prevail on the merits if the motion to reopen were granted. As the BIA previously explained, a noncitizen “demonstrates prima facie eligibility for relief where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied.” In re S-V-, 22 I. & N. Dec. 1306, 1308 (B.I.A. 2000) (en banc). Because the BIA applied the wrong standard in denying Fonseca-Fonseca’s motion to reopen, we remand to the agency to adjudicate his motions under the proper standard.”
[Hats off to Andrew J. S. Newcomb and Elias Mendoza!]
“This appeal requires us to decide how to apply the categorical approach to a conspiracy crime—a question of first impression in our Circuit. The United States seeks to revoke Lisette Lopez’s naturalization on the ground that she committed a crime of moral turpitude within five years of applying for citizenship and willfully concealed or misrepresented during the application process the fact that she had committed a crime. The district court granted judgment on the pleadings in favor of the government on the ground that Lopez had committed a crime of moral turpitude during the statutory period. Because the crime to which Lopez pleaded guilty—conspiring to launder money—did not categorically involve moral turpitude, we reverse and remand for further proceedings consistent with this decision.”
[Hats way off to the indefatigable Matthew Hoppock! An audio recording of the oral argument is here.]
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3) Sue sponte reopening (5th Cir)
“Mancia would like to have her removal proceedings reopened so that her request for suspension of deportation can be adjudicated according to the still-extant substantive NACARA standards. … She contends that nothing in NACARA limits the Board’s general discretionary power to reopen sua sponte a case in which it has rendered a decision. Indeed, that inherent discretion is codified. See 8 C.F.R. § 1003.2(a). So, she reasons, even though the special and more petitioner-friendly reopening avenue of section 203(c) closed to her in 1998, there is no reason why she cannot ask the Board to grant reopening under its discretionary authority, subject to all the limits that otherwise apply to that authority. … We agree with Mancia. The Board’s reliance on 8 C.F.R. § 1003.43(h) — requiring filing of section 203(c) reopening requests with the Immigration Court — is misplaced because that requirement only applies to “any motion to reopen filed pursuant to the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA.” See 8 C.F.R. § 1003.43(h)(1). Mancia’s motion to reopen is no such motion. And nothing in NACARA requires those seeking relief under its provisions to do so by filing a section 203(c) motion. The government points to no statute, rule, or precedent to the contrary. And we see no reason why NACARA should be read as implicitly divesting the Board of its discretion to sua sponte reopen a proceeding. … For the foregoing reasons, we grant Mancia’s petition by vacating the Board’s rejection of her motion to reopen her removal proceedings pursuant to the Board’s sua sponte authority and remanding for further consideration of that motion consistent with this opinion.”
Unnecessary mistakes such as this, including ones like USA v. Lopez, above, which carry over into naturalization and other areas, could largely be avoided if Garland heeded expert advice and appointed a BIA of all expert judges. That would be those with universally respected comprehensive knowledge of immigration and human rights, an unswerving commitment to due process, and a demonstrated focus on fair results — NOT the current “any reason to deny, let’s just go with the DHS flow” attitude that infects all too much of the BIA’s decision-making these days.
There is also some irresponsible performance going on at OIL where they are defending flawed results that expert advocates would or should know are unjust and in many cases just flat out wrong or misguided!
The above things are supposed to be “easy fixes” for Dem Administrations. Instead, the EOIR/DOJ continues to a large extent as it did under Trump — with serious adverse human, legal, and future consequences for American democracy.
If you can’t or won’t fix that which you control, what good are you? That’s the question that Dems should be asking about Garland’s indifferent performance on human rights, racial justice, and immigration — all inextricably related whether he and his lieutenants want to admit it or not!
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
Trump & McConnell stuck a mob of these unqualified righty extremists on the lower Federal Courts. Even a super conservative Supremes might be tiring of the overt bias and lack of basic judicial competence exhibited by these judicial hacks. https://www.flickr.com/photos/rasputin243/ Creative Commons License
The Court’s decision in United States v. Texas was 8–1, with all eight justices in the majority concluding that Tipton didn’t even have jurisdiction to hear this case in the first place — though they split 5-3 on why Tipton lacked jurisdiction. Only Justice Samuel Alito, the Court’s most reliable Republican partisan, dissented.
The case concerned 2021 guidelines, issued by Secretary of Homeland Security Alejandro Mayorkas, that instructed ICE agents to prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
Two red states, Texas and Louisiana, sued, essentially arguing that ICE must arrest more immigrants who do not fit these criteria. Moreover, because Texas federal courts often allow plaintiffs to choose which judge will hear their case by deciding to file their lawsuits in specific parts of the state, these two red states chose Tipton — a staunchly anti-immigrant judge who has been a thorn in the Biden administration’s side since the first week of his presidency — to hear this lawsuit.
In one of the most predictable events in the US judiciary’s history, Tipton promptly obliged the two states by striking down Mayorkas’s guidelines.
Justice Brett Kavanaugh’s opinion in Texas holds that no federal judge should have ever even considered this case. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions.” To the contrary, the Court held in Linda R. S. v. Richard D. (1973) that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”
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That said, the decision does contain some language that anti-immigrant judges may latch onto to impose their preference on the country — including a paragraph that reads like it was written to preserve lawsuits challenging the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
And there is one other very frustrating thing about this case. Although the Supreme Court eventually ruled that Tipton is not the head of ICE and cannot decide who its agents arrest, it rejected a request to temporarily block Tipton’s decision last July.
“Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings.”
[Hats off yet again to superlitigator Raed Gonzalez!]
When will they learn, when will they ever learn? The ultra-conservative 5th Circuit pays attention when Raed litigates in behalf of individuals seeking due process and fundamental fairness at EOIR. Why doesn’t Garland?
Injustice Public Realm Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!
The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!
Based on all of the evidence as a whole, and in light of the applicable caselaw, Reyes-Hoyes has made a compelling case of persecution. Nevertheless, we find a remand is necessary because the BIA did not make a determination as to Reyes-Hoyes’s credibility. The BIA did not mention credibility in its decision or express any doubts about the truth of Reyes- Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s credibility, although he did not explicitly find her uncredible and ultimately stated he was not denying relief “based on a lack of sufficiency of proof.” However, the BIA did not adopt the IJ’s decision and thus did not incorporate any of the doubts the IJ had. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). If Reyes-Hoyes is credible, she has shown persecution, but the credibility determination must be made by the factfinder, not by this court on appeal. See 8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Olivia v. Barr, 954 F.3d 757, 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated in part, and we remand to the BIA for a determination on credibility.
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In sum, we conclude that, if Reyes-Hoyes is credible, the record compels the conclusion that Reyes-Hoyes suffered harm rising to the level of past persecution, but we remand for the BIA to consider her credibility in the first instance. We also conclude that the record compels the conclusion that safe internal relocation to parts of Guatemala—Mesata and Raul—was not possible. Additionally, we hold that the BIA procedurally erred in the remainder of its analysis concerning whether internal location was reasonable and whether Reyes-Hoyes had shown state action by not meaningfully considering the relevant substantial evidence.
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Here is my immediate reaction when Dan Kowalski at LexisNexis sent me the decison:
Wow! This is an EOIR/OIL error fest — replete with misrepresentations and mischaracterizations! Totally sloppy work! Why won’t they publish this? It’s a perfect example of how Garland has failed to get the job done!
And, here’s the reaction from my friend and Round Table Colleague “Sir Jeffrey Eagle Eyes” Chase:
24 pages; very detailed analysis of recurring asylum issues. Should certainly have been published.
BTW, please note footnote 9, an example of the ongoing problem with the government’s online regs continuing to list the enjoined “death to asylum” regs that the previous administration tried to push through. The Fifth Circuit continues to believe that the internal relocation reg was amended effective January 19, 2021. Have cases been decided based on this erroneous belief?
Lest you doubt the “complete FUBARness” of EOIR, check these out:
Worst of all the small and mid-sized agencies ranked;
While the “curve” for “subagencies” has gone up since 2007, EOIR’s score has cratered, plunging dramatically during the Trump years;
EOIR ranked at or near the bottom on key metrics, including, significantly, “leadership style” (some of the “credit” for this abysmal score should go to DOJ, which has failed to provide dynamic, due-process-oriented leadership over the last six years);
GAO study just cited EOIR for a number of management deficiencies including “blowing off” “our [GAO’s] 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so—even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”
The NAIJ continues to raise technology and health and safety defects with EOIR “management;”
Notably, during this period of abject failure, EOIR has found time and resources to waste (and potential “goodwill” to squander) on unneeded nonsense like “IJ Dashboards,” “production quotas,” “expedited dockets,” more layers of bloated headquarters bureaucracy, and, perhaps the biggest boondoggle of all, a totally absurd and duplicative “Office of Policy” for an agency that has demonstrated a disturbing inability to carry out its “core function:” Providing Due Process for all through fair, timely, expert, correct adjudications!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — As Dems founder in their commitment to restore justice, could new Immigration Judges from the NDPA — unswervingly committed to due process, fundamental fairness, and best practices — get this poor little fella back on his feet and improve the culture and atmosphere at the “retail level” of EOIR, even in the face of indifference and incompetence from those in charge? Lives and futures — perhaps the future of our democracy — are at stake!
What we really need is a “lean, not mean, due process machine” @ EOIR. Why can’t the Dems deliver? That’s the age-old question among human rights experts!
A.G. Merrick Garland’s continuing operation of the “EOIR Clown Show,” at taxpayer expense, is costly in more ways than one! “Any reason to deny” proves too much even for the hyper-conservative 5th Circuit! PHOTO: Public Domain
Dan Kowalski reports for LexisNexis Immigration Community:
“On May 18, 2022, this court granted Giscard Nkenglefac’s petition for review of the Board of Immigration Appeals’s (BIA) dismissal of petitioner’s appeal from the immigration judge’s (IJ) denial of his application for relief from removal. See Nkenglefac v. Garland, 34 F.4th 422, 430 (2022). Because the IJ’s adverse credibility determination was not supported by evidence in the record, we determined that the BIA erred in affirming it and remanded the case to the BIA. The petitioner filed a timely application for attorneys’ fees under the Equal Access to Justice Act (EAJA). We find that petitioner is entitled to attorneys’ fees under the EAJA and award $56,169.79.”
Homero Lopez, Jr. Director & Co-Founder Immigration Services & Legal Advocacy New Orleans, LA PHOTO: ISLA websiteEmma Morley Paralegal Immigration Services & Legal Advocacy New Orleans, LA PHOTO: ISLA website
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Wouldn’t it be cheaper and better for everyone if Garland finally “cleaned house” at EOIR, appointed and retained only well-qualified expert judges at both the trial and appellate level, replaced incompetent administrators, and ended the toxic — and costly — “any reason to deny culture” at EOIR?
When the DOJ is being “pasted” on wrongful decisions denying asylum by the 5th Circuit, everyone but Garland knows that “the EOIR Clown Show has got to go!”🤡
Make no mistake about it! Garland’s failure to reform EOIR into a due-process-focused expert tribunal willing to stand up for the legal rights of asylum seekers and to require “best practices” with respect to access to representation at the border and elsewhere is a major contributing factor to the Biden Administration’s deadly humanitarian disaster and abrogation of the rule of law for asylum seekers at the Southern Border. It didn’t have to be this way!
Why is this “preventable disaster” happening under a Dem Administration that ran on an (apparently false) pledge to restore due process and the rule of law for asylum seekers and other migrants? How can we stop it and prevent it from happening again in the future?
I daresay that many humanitarian experts warned the Biden Administration that without fundamental positive changes, better, courageous, expert, inspirational leadership, and long-overdue administrative reforms at DOJ, DHS, and the White House, disasters would unfold across the board. That’s exactly what has happened! It’s also infecting the entire legal system and inhibiting social justice in America.
But , unless and until social justice advocates come up with a better political approach to the disturbing lack of integrity and values in both political parties when it comes to immigration, they will continue to be vilified and attacked by the GOP and “consistently kicked to the side of the road” by Dems!
I wish I knew the answer! I don’t! But, I do know that human rights and social justice disasters will continue to unfold unless and until social justice advocates figure out how to get some “political clout” behind their intellectual power and store of (largely ignored) great ideas!
“Good enough for government work” might be the mantra for Garland’s EOIR — but, it doesn’t ‘cut it’ with Article III Courts, even the conservative, non-immigrant-friendly 5th Circuit!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Francis Zamaro-Silverio petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a crime involving moral turpitude (“CIMT”) and thus found her ineligible for those forms of discretionary relief. Because the BIA did not perform the proper analysis, we grant review, vacate, and remand for determination of whether Zamaro-Silverio’s conviction was for a CIMT. … The BIA found that Garcia-Maldonado controlled the outcome for Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The proper focus is now on the minimum conduct prohibited by the statute, not on Zamaro-Silverio’s particular actions. The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d at 877. Garcia-Maldonado does not reach this question, and, similarly, the BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting Orlando Ventura, 537 U.S. at 17) (alteration in original). Therefore, the petition for review is GRANTED. We VACATE and REMAND to the BIA with instruction to determine whether the failure to share information under § 550.021(a)(4) is a CIMT.”
The Fifth Circuit precedent that the BIA failed to apply here, Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017), was issued in 2017, before this respondent was even convicted. Yet, the BIA erroneously applied the pre-2017 version of Circuit law to deny her application. How is this competent adjudication from what is supposed to be a “specialized court” of expert adjudicators?
Remarkably, the BIA was even given a chance to correct its obvious error through a motion to reconsider filed while this petition for review was pending with the Circuit. Astoundingly, the BIA denied the motion to reconsider and “stuck with” a decision that violated Circuit precedent. What a way to (not) “run the railroad.”🚂
The Fifth Circuit panel in this case, Judge Jerry E. Smith (Reagan) (opinion), Judge Edith Brown Clement (Bush II), and Judge Cory T. Wilson (Trump) are all GOP appointees, among the most conservative Federal Judges in America — right out of “The Federalist Society Hall of Fame!”
Even the most far-right GOP Federal Judges have a “bottom line” that the BIA can’t manage to remain above.
Somewhat ironically, Dem Attorney General Merrick Garland, once nominated for the Supremes by President Barack Obama, appears to have no such bottom line for the BIA’s sloppy, unprofessional “any reason to say no and deny” judging! Unfortunately, it’s symptomatic for a Dem Administration that just doesn’t care very much when it comes to due process, fundamental fairness, and justice for migrants! Garland’s tolerance for bad judging is also clogging the Circuit Courts with unnecessary litigation generated by the BIA’s substandard performance!
Although he famously has reassigned most of the “high profile” work of the DOJ to various “Special Counsel,” curiously, Dem AG Merrick Garland, a former Article III Judge, doesn’t seem to have the time or the skills to fix the festering due process, bias, quality control, and professionalism problems in “his” wholly-owned “court” system — EOIR! So, the systemic injustice and chaos continue, unabated! PHOTO: Wikipedia Commons
When Judge Jerry E. Smith and his colleagues have the integrity to stand up for the legal rights of a respondent, even one who has committed a crime, but a Democratic AG doesn’t have the courage to bring fair and professional judging and quality control to EOIR (after two years on the job), progressives and advocates ought to be asking what the heck they voted for in 2020? I doubt that it was this awful, entirely preventable, mess!
“This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. … [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion.”
[Hats off once again to superlitigator Raed Gonzalez!]
Thanks Raed for continuing to lead the fight for justice in “America’s worst ‘court’ system” in America’s most right-wing Circuit!
THIS “any reason to deny mentality” at EOIR, still being promoted by Garland’s BIA, combined with incredibly inept and unprofessional “administration” of EOIR by DOJ, is why the Immigration Court is broken and being crushed by unending backlogs, daily chaos, and a travesties of justice and sound government!
The Biden Administration pretends like the problem doesn’t exist and/or isn’t important enough to fix. But, I can assure you that they are WRONG! “Dead wrong” in some cases!
In addition to the public manifestations of dysfunction and unprofessionalism like this case, I get regular e-mails from NDPA members relating their own EOIR horror stories and venting their frustrations with the arrogant “above the fray/what me worry about humanity and those defending it” attitude of Garland and the rest of the Biden Administration responsible for the ongoing EOIR catastrophe!
I strongly doubt that Garland, Monaco, Gupta, Prelogar, and the rest of the DOJ “clueless crew” responsible for this indelible blot on American justice would last 60 days if required to practice exclusively before EOIR under the unfathomably horrible, due-process-denying conditions they have promoted and enabled over their past two years of horrible legal “leadership!” As aptly stated by one practitioner who recently contacted me:
“Things in Immigration Court will never be the same, but I at least expected attention to due process. Nope, IJ’s are more interested in getting the cases done.”
How is this appropriate conduct from a Dem Administration that claims to value human lives, racial justice, and the rule of law, but whose actions at EOIR (and elsewhere in immigration and human rights) say the exact opposite? Poorly functioning as EOIR was when I retired in 2016, the “anecdotal consensus” from practitioners seems to be that it’s measurably worse now under Garland’s inept leadership! “Come on man,” this just isn’t right!
After all this time (17 years since the BIA’s supposedly “final” order), this case is still not complete! It’s back at the BIA for yet another chance for them to deny on specious, legally incorrect grounds. One possibility is to misapply the “equitable tolling” concept mentioned by the 5th Circuit. The BIA has a long, disgraceful record of resisting and mis-applying equitable tolling.
Or, perhaps they will attempt to invoke their recent precedent in Matter of Chen, 28 I&N Dec. 676 (BIA 2023) https://www.justice.gov/eoir/page/file/1561876/download to deny reopening for “failing to make out a prima facie case for relief on the merits.”
Chen is a case where the the respondent moved to reopen to apply for NLP cancellation having attained the required 10 years of physical presence by reason of the BIA’s two wrong-headed precedents overruled by the Supremes in Pereira v. Sessions and Niz-Chavez v. Garland. Having twice screwed up in a way that created tens of thousands of potential remands and reopenings, someone not familiar with the BIA might have expected them to set forth clear, practical, generous criteria that would encourage IJ’s to consistently reopen cases where the respondent now had the qualifying time and relative(s) in light of the problems caused by the BIA itself. After all, that’s basically the direction in the BIA’s long-standing precedent Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) (reopening where the record“indicate[s] a reasonable likelihood of success on the merits, so as to make it worthwhile to develop the issues at a hearing”). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjWzY36pdn8AhVgF1kFHTcxChEQFnoECBkQAQ&url=https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3281.pdf&usg=AOvVaw2Ntzlp4MuxfupmjaDIn7i6
Since “exceptional and extremely unusual hardship” is inherently a fact-bound issue requiring a hearing to develop those facts, one might expect most cases to be routinely reopened.
But, the BIA took a different tack in Chen. While acknowledging that the hardship asserted by the respondent fell within the zone of those “recognized” by the BIA, they found “she has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”
While the BIA claimed to be “following” Matter of L-O-G-, they actually appear to have violated the teaching of that case that: “In considering a motion to reopen, the Board should not prejudge the merits of a case before the [respondent] has had an opportunity to prove the case.”(21 I&N Dec. at 419). That should particularly be true when the BIA itself has had a major role in creating the situation where reopening is sought.
By providing only a negative precedent (they didn’t even botherto “bookend” this with a precedential example of a grantable motion) to a system already suffering from a “culture of denial,” the BIA aggravated an long-festering problem. One can expect many IJ’s to view Chen as an “invitation to deny” the many Pereira/Niz Chavez motions to reopen in the offing for specious reasons or indeed for “any reason at all.” I expect talented NDPA warriors like Raed to make mincemeat out of the BIA’s wrong-headed attempt to minimize the “Pereira-induced damage” they have generated.
Like most of the misguided efforts of the 21st Century BIA, this attempt to cut corners, summarily deny, and NOT provide full due process and real hearings is likely to take more time and waste more resources than simply giving respondents the fair merits hearings to which they are legally entitled in the first place.But, that’s exactly what this Dem Administration has wrought at EOIR. “More of the same, instead of the promised change!”
“Oscar Aguado-Cuevas, a Mexican national, petitions for review of the BIA’s decision affirming a denial of his application for relief under the Convention Against Torture. For the reasons below, we GRANT the petition, VACATE the BIA’s decision, and REMAND this case for further consideration of Aguado-Cuevas’s petition for CAT protection. … Aguado-Cuevas filed an application for relief under the Convention Against Torture (“CAT”), arguing that his uncles and cousins in Mexico were cartel members who would kill him if he returned. In September 2020, Aguado-Cuevas, his father, and an expert witness testified in support of Aguado-Cuevas’s CAT application. … Aguado-Cuevas signed a cooperation agreement and began cooperating with federal authorities. Aguado-Cuevas’s cooperation, including his agreement to testify against Adolfo Jr. and CJNG, was leaked to the media and publicized online. … [A]n expert witness testified that Aguado-Cuevas’s chances of potential risk or torture upon returning to Mexico were “[e]xtremely high to [a] near certainty” due to his informant and debtor status. … [T]he BIA erred by not applying the correct legal framework in which it must show that it meaningfully considered “relevant substantial evidence supporting the alien’s claims.” … Although we remand primarily for the BIA to reconsider the state involvement prong of the CAT analysis, we note that both parties acknowledge that the BIA’s likelihood of torture analysis suffers from similar deficiencies. Accordingly, to the extent that the BIA finds that Aguado-Cuevas has shown the requisite level of state involvement upon remand, we order the BIA to also consider the likelihood of torture prong under the proper legal framework. … Aguado-Cuevas claims that he will be murdered by CJNG as punishment for being an informant and debtor following his drug-related activities in the U.S. Concerning the likelihood of torture, Aguado-Cuevas argues—and the Government agrees—that the BIA should have more closely considered evidence of Aguado-Cuevas’s actions in the U.S. that could characterize him to CJNG as an informant and debtor. Specifically, the BIA did not properly consider evidence that (1) Aguado-Cuevas owed CJNG $120,000 after his botched deal; (2) Aguado-Cuevas was identified by the media as an informant in the prosecution of a CJNG member; (3) a text message identified Aguado-Cuevas as a potential target of the CJNG; (4) a residence where Aguado-Cuevas stayed was ransacked; and (5) CJNG routinely kills debtors and informants. Such evidence goes directly to Aguado-Cuevas’s arguments of likelihood of torture as an informant and debtor; such a theory hinges not on events in Mexico but on his actions in the U.S., making him a particular target for torture by CJNG. The BIA failed to properly consider these pieces of evidence. … The complete lack of discussion of the aforementioned evidence suggests that the BIA has not met this standard. As before, the BIA should remand to the IJ for additional factfinding if necessary.”
Many congrats and thanks Carla! There is an”epidemic” of botched CAT cases being “outed” by the Circuits. This one was so horribly mishandled, that even OIL couldn’t defend it!
Yet, the “downbeat goes on” as Garland feigns ignorance of the institutionalized injustice @ EOIR being carried out in his name! On his watch, the BIA has gone from “any reason to deny” to “no reason whatsoever for denying.”
Apparently, as long as the BIA staff attorney drafts the decision so the individual loses, it really doesn’t matter to the “signatory appellate judge” at the BIA what goes above the “bottom line.”
It’s a heck of a way to “run the railroad” 🚂 with human lives at stake and an ever growing, out of control, 2 million case backlog! After 2.5 years bouncing around the EOIR system, this particular case is headed back to the IJ in a never ending quest for competent judging, due process, and fundamental fairness. All three of the foregoing are elusive qualities at Garland’s EOIR!
Garland’sso-called “dedicated dockets” gimmick has been a total failure from a due process and fundamental fairness standpoint. See, e.g.,https://trac.syr.edu/reports/704.
The only “dedicated docket” that Garland REALLY needs at EOIR is one dedicated to getting the results right in the first instance! But, that readily achievable objective (althoughNOT without major, long over due personnel changes in “management,” the BIA, and among some IJs) appears of little interest to Garland or the Biden Administration. Thus, the latest Dem Administration appears content to let the dysfunctional EOIR system limp on spewing injustice, bad law, and insurmountable backlogs on its downward spiral!
Many immigration issues are divisive. Protecting dreamers is not. Virtually every poll conducted on the subject finds that Americans of all political persuasions favor granting dreamers some form of permanent legal status, including a path to citizenship. Even Trumpers are on board, surveys show. Faith groups, law enforcement officials, employers, national security experts and other major constituencies besides typical bleeding-heart immigration advocates have urged Congress repeatedly to grant these young immigrants greater legal certainty.
Unfortunately — as is the case on so many issues — Congress has abdicated its responsibility to act. Instead, the executive branch has been tasked with devising temporary workarounds.
In 2012, the Obama administration announced a sort of Band-Aid solution, known as the Deferred Action for Childhood Arrivals (DACA) program. DACA offers some of these young immigrants access to (temporary) work permits and protections from deportation, which must be frequently renewed. Eligibility extends only to those who meet certain age and educational requirements, have lived here continuously since 2007 and pose no threat to public safety, among other conditions.
This program was generally expected to be a stopgap while Congress worked on broader immigration reforms or at least a pathway to citizenship for dreamers; so far, neither has materialized.
[As DACA immigrant program turns 10, legal challenges persist]
In the decade since it was introduced, DACA has weathered multiple legal challenges — including from a coalition of red states led by Texas, as well as attempted repeal by President Donald Trump. For now, the program remains mostly intact while the red-state challenge wends its way through the courts. But DACA’s days look numbered.
. . . .
This is hardly the only immigration issue on which Republican politicians have complained about executive overreach yet been reluctant to exercise their own powers. Other vulnerable, sympathetic populations of immigrants — such as the Afghan allies who were temporarily “paroled” into the United States — are stuck in their own legal limbo unless and until Congress acts.
But it’s always easier for politicians to grandstand over everyone else’s immigration policy choices than to produce solutions of their own.
**********************
Read Catherine’s complete article at the link.
How stupid and cruel is the GOP’s assault on Dreamers? It’s not like most “Dreamers” are going anywhere. After all, there are already about 2 million individuals (not to mention family members, employers, etc.) backed up on Garland’s dysfunctional Immigration Courts. And, under Garland’s misguided leadership, more judges are actually building more backlog!
But, without DACA’s work authorization, those not eligible for other forms of relief (e.g., asylum, cancellation of removal) will lose their authorization to work. Since many are in critical or essential jobs with employers who can’t afford to be out of compliance with Federal laws, it’s reasonable to assume that Dreamers would lose those jobs. That means that many will have to take lesser jobs in the substantial “underground economy” operating in the U.S., largely as a result of the GOP’s obstinance on sensible immigration policy.
If that appears stupid, it’s because it is! But, what else is new with the GOP’s cruel, xenophobic, and unrealistic approach to immigration.
It’s remarkable that out of touch righty judges on the 5th Circuit, whose jobs and existence actually depend on the systemic non-prosecution of most Federal offenses, would actually have the gall to issue their off the wall ruling dumping on Dreamers! In reality, by necessity, only a small number of violations of Federal statutes are prosecuted. See. e,g., https://prisonprofessors.com/federal-crimes-to-prosecute-or-not/.
The Fifth Circuit’s “off the wall” apparent theory that Federal officials lack discretion to redirect prosecution resources toward the most serious offenders is pure “Federalist Society political poppycock!” It’s particularly out of bounds to critique the Feds for taking steps to insure that such discretion is exercised uniformly and reasonably, rather than arbitrarily and capriciously.
I had lots of experience with “PD” programs over four decades in Federal service. The DACA program is far and away the premier “model” program for the effective and rational exercise of PD.
The major impediment to the rational immigration law and policy adjustments America needs is today’s nativist-driven GOP. Unless and until enough American voters wise up and throw the GOP out at all levels, America will not achieve it’s full potential!
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Raed Gonzalez ESQUIRE Chairman, Gonzalez Olivieri LLP Houston, TX PHOTO: best lawyers.com
From Dan:
Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)
“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. … [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”
[Yet another victory for Superlitigator Raed Gonzalez! Who else could persuade CA5 to agree with CA9, and get an award of costs?]
Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America! PHOTO: Creative Commons
Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit!
Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!
Rotten Tomatoes Garland & his lieutenants deserve appropriate recognition for failing to bring long-overdue reforms to America’s most dysfunctional “parody of a court system” — EOIR! PHOTO: Creative Commmons
Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases?I like the fee award but I doubt that it has much impact on their behavior.”
Professor Richard Boswell UC Hastings Law PHOTO: LinkedIn Professor Boswell asks the right question. So far, “Team Garland” has no answers!
I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!
If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary.
The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!
Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?
The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination.
How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?
By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!
One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!
Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!
It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!
Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights,and racial justice at DOJ!
I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!
It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”
Has Alfred E. Neumann been “reborn” as Judge/AG Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
For some (not all) EOIR judges, ignoring the record and making up reasons to deny asylum has become “business as usual.” The BIA, dominated by notable asylum deniers, often ”papers over” or “doubles down” on mistaken denials. There are no consequences for wrongfully endangering the lives of vulnerable asylum seekers. How would YOU (or for that matter Judge Garland) like YOUR life and future to be in the hands of an organization that has lost sight of its due process and fundamental fairness mission? Why isn’t fixing this unfair national disgrace (which falls disproportionately on individuals of color and other minorities) “job one” at the Biden/Harris/Garland DOJ? https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Mariana Ndudzi, a native and citizen of Angola, petitions for review of a Board of Immigration Appeals (BIA) decision denying her appeal of an immigration judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). She argues that the Agency erred in finding her not credible and failed to review her corroborating evidence. We vacate and remand. … The main issue in this appeal is whether the BIA erred in upholding the IJ’s adverse credibility finding. That decision is largely based on perceived contradictions between Ndudzi’s alleged statements in her CFI and her sworn testimony in her removal hearing. Ndudzi makes two arguments against the adverse credibility finding. … [N]one of the inconsistencies the Agency relied on are in fact inconsistent. … In sum, the BIA and IJ’s adverse credibility determination rests largely on “inconsistencies” in the record that are not actually inconsistent. … In summary, the BIA and IJ relied heavily on an unsupported conclusion that Ndudzi is not a credible witness. At the same time, there appears to be little dispute that, if Ndudzi’s claims are true, she would be entitled to asylum under 8 U.S.C. § 1158(b)(1)(A). Because the adverse credibility finding is not supported by specific and cogent reasons derived from the record, we GRANT the petition for review, VACATE the decisions of the BIA and IJ denying Ndudzi’s application for asylum and CAT relief, and REMAND for further proceedings consistent with this opinion.”
“Because the adverse credibility finding is not supported by specific and cogent reasons derived from the record:”The 5th Circuit states the correct standard for adverse credibility findings, derived from BIA precedents! But, neither the IJ nor the BIA applied it! How is this professionally acceptable “judging” from supposed (but not really) “experts? Why is it tolerated at Garland’s DOJ?
Folks, stripped of the legal niceties, the most conservative Article III court in America just spent 16 pages analyzing and finding that the IJ and the BIA invented bogus “inconsistencies” to deny an otherwise clearly “grantable” asylum application from a woman who fled Angola.
Why is this type of unprofessional judicial performance, at both the trial and appellate levels of EOIR, acceptable in “life or death” cases? Why is it “OK” to submit asylum seekers to a “crap shoot” for their lives rather than giving them fair hearings before expert judges committed to great scholarship, careful analysis, and, most important, “getting it right the first time around?” Both the IJ and the BIA actually “went to some lengths” to invent reasons to disbelieve credible testimony. Isn’t unwillingness to fairly and routinely grant asylum to qualified applicants a major contributing factor in EOIR’s uncontrolled backlog? Wouldn’t getting it right at the “first level” promote efficiency and reduce the need for appellate litigation?
Also worthy of note: The 5th Circuit’s “footnote 2” punches huge holes in the myth of demeanor as an indicator of credibility:
Such deference is perhaps unfounded, however, given the wealth of contemporary psychological research suggesting that subjective perception of a witness’ demeanor is an unreliable indicator of the witness’ veracity. E.g., Mark W. Bennett, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know about Cognitive Psychology and Witness Credibility, 64 AM. U. L. REV. 1331, 1332 (2015) (“[C]ognitive psychological studies have consistently established that the typical cultural cues jurors rely on, including averting eye contact, a furrowed brow, a trembling hand, and stammering speech, for example, have little or nothing to do with a witness’s truthfulness.”); Liz Bradley & Hillary Farber, Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference, 36 GEO. IMMIGR. L.J. 515, 535 (2022) (“Decades of research by social scientists have shown that the nonverbal ‘cues’ commonly associated with deception are based on false assumptions,” and cultural differences between an asylee and an IJ can “lead to cross- cultural misunderstandings of nonverbal cues,” especially when testimony is mediated through an interpreter).
Conscientious judges and advocates take note! In plain terms, “demeanor” is a largely bogus device used by bad judges to deny potentially valid claims. Obviously, in a “deny and deport oriented culture” like today’s EOIR (the very antithesis of the generous approach the Supremes in Cardoza and an earlier BIA in Mogharrabi said should apply to asylum adjudication), “bogus demeanor findings” become just another “device to deny protection.”
🇺🇸Due Process Forever!
PWS
07-23-22
Revised on 07-23-22 to reflect the panel’s revised opinion.
