"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.
“Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise. The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised. See Eduard, 379 F.3d at 196. We therefore remand for the limited purpose of the Board’s addressing Abushagif’s CAT claim.”
The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise.
“Confounding,” but not surprising to any of us who follow the continuing meltdown of justice and callous indifference to the law, truth, and human lives @ Garland’s failed and failing Department of “Justice.”
The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised.
Basically, OIL, argues that even if they had actually addressed CAT, the BIA would still have stiffed the respondent’s claim because that’s what a “programmed to deny for any reason” BIA does. Why bother with a BIA decision when a denial is “predetermined?” Is this really the sad state of due process at Garland’s DOJ? Apparently!
Let’s put this in context. The respondent is from Libya, a country notorious for torture. Here’s an excerpt from the latest (2020) Department of State Country Report on Libya:
While the 2011 Constitutional Declaration and postrevolutionary legislation prohibit such practices, credible sources indicated personnel operating both government and extralegal prisons and detention centers tortured detainees (see section 1.g.). While judicial police controlled some facilities, the GNA continued to rely on armed groups to manage prisons and detention facilities. Furthermore, armed groups, not police, initiated arrests in many instances. An unknown number of individuals were held without judicial authorization in other facilities nominally controlled by the Ministry of Interior, Ministry of Defense, or in extralegal
Country Reports on Human Rights Practices for 2020
United States Department of State • Bureau of Democracy, Human Rights and Labor
LIBYA 7
facilities controlled by GNA-affiliated armed groups, LNA-affiliated armed groups, and other nonstate actors. Treatment varied from facility to facility and typically was worst at the time of arrest. There were reports of cruel and degrading treatment in government and extralegal facilities, including beatings, administration of electric shocks, burns, and rape. In many instances this torture was reportedly initiated to extort payments from detainees’ families.
Also, the 5th Circuit is generally considered the most conservative and pro-Government Circuit. It is a jurisdiction where the Government has to work hard and really, really screw up to lose an immigration case.
Two of the panel judges in this case are GOP appointees: Judges Engelhardt (Trump), and Smith (Reagan). The third panel member, Judge Higginson is an Obama appointee. Judge Jerry E. Smith, who wrote this opinion, is known as one of the most conservative Federal Judges in America! If these jurists see problems, you can be sure they actually exist!
One thing that unites Federal Judges across the ideological spectrum is dislike of being lied to by DOJ attorneys! Evidently, that’s no longer of concern to Judge Garland now that he is the purveyor, rather than the recipient, of misrepresentations, untruths, and sloppy, unprofessional work from DOJ attorneys!
How travesties like this, that happen at Garland’s DOJ on a daily basis, in “life or death” cases, is acceptable professional judicial performance is beyond understanding!
Additionally, how clearly misrepresenting the facts of record is ethically acceptable performance for OIL attorneys is totally beyond me!
Maybe its time for the House and Senate Judiciary Committees to call Judge Garland before them for oversight to examine his continuing mismanagement of EOIR, America’s worst, most backlogged, most blatantly unfair, court system, that has not materially improved during his tenure. They should also inquire as to why he continues to tolerate unethical performance from OIL Attorneys making material misrepresentations to Federal Courts in attempting to defend the indefensible performance of the BIA in immigration litigation. Also, why hasn’t Garland spoken out about the illegal suspension of asylum laws enacted by Congress at our borders? Human lives are at stake here!
The idea that Garland intends to “fix” this problem by throwing 200 new Immigration Judges into this broken, dysfunctional system, without first addressing any of the structural, management, competence, personnel, and institutional bias issues at EOIR is beyond absurd! “Management 101” says you fix the system by rooting out and replacing incompetent and unqualified judges, replacing incompetent managers with competent ones, and fixing the many broken operational pieces of the Immigration Court System before expanding it.
This means, at a minimum, slashing the backlog by getting hundreds of thousands of old, non-priority cases off the docket now, stopping endemic “Aimless Docket Reshuffling” at EOIR, installing a functional e-filing system, getting competent representation into the Immigration Courts, replacing the current institutionalized “worst practices” with “best practices,” and instituting real judicial training by experts from outside EOIR.
Only then, after the system has been made functional, should it be expanded, if needed. Otherwise, it’s like trying to fix defective automobile production by hiring more workers and speeding up the assembly line, thereby producing more defective vehicles without fixing that which caused the defects in the first place.
This case also shows the critical, life-saving role of pro bono counsel in Immigration Court. Without the heroic efforts ofpro bono publico counsel Alison Caditz and Jeri Leigh Miller, Mr. Abushagif would probably be hanging from a ceiling fan in Libya right now!
Garland indifferent to wrong torture decisions from BIA? Photo by David R. Badger, Creative Commons
I was pleased to see that Judge Smith cited my precedent opinion in Matter of L-O-G-, 21 I&B Dec. 413 (BIA 1996) in his opinion. See FN 1. In L-O-G-, we held that “we have been willing to reopen ‘where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.’” 21 I&N Dec. at 419 (citations omitted).
Yes, folks, there was a time long ago and far away when BIA Chairs actually functioned as appellate judges: participating in cases at both the panel and en banc level, writing decisions, and, where necessary, filing dissents, without regard to “career enhancement.” That was in addition to BIA management duties, being a senior member of EOIR’s executive team, andmany public speaking, writing, and other public information and educational functions.
While today’s BIA and many Immigration Judges routinely ignore Matter of L-O-G- and its important teaching, it remains “good law,” as found by Judge Smith. Practitioners should be citing it in every motion to reopen and insisting that EOIR start following its own precedents, even where they produce results inconsistent with the restrictionist positions urged by DHS or the “round ‘em up and move ‘em out attitudes” that still seem prevalent at Garland’s DOJ.
It’s rather ironic that Federalist Society hero Judge Jerry E. Smith understands me better than Garland’s BIA!
Garland seems uninterested in making the long overdue bold progressive reforms necessary to restore due process, consistency, humanity, and racial justice to our broken and dysfunctional Immigration Courts. That means the battle over the next four years is likely to shift to the Article III Courts and Congress to finally get this utterly disgraceful, yet fixable, system back on track! This is also what’s required to save at least some of the vulnerable human lives now being “chewed up and spit out” by Garland’s ☠️ “Deadly Clown Courts” 🤡 and their ethics-challenged OIL defenders!🤮
For these reasons, we do not see a strong justification for concluding that the IIRIRA detention statutes override the deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings. That means the United States has shown a likelihood of prevailing on appeal to the extent the preliminary injunction prevents officials from relying on the memos’ enforcement priorities for nondetention decisions.
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Finally, some rationality and common sense! A partial stay from the ultra-conservative 5th Circuit is a good sign for the Biden Administration on this issue.
These two op-eds make compelling cases for the 5th Circuit rivaling the Supremes as the most scofflaw, out of control, and dangerous court in America! But, hey, is there a “dark horse” in this righty “race to the bottom?” 🐴 (Curiously enough, “owned” and “trained” by Biden-Garland Stables!)
First, let’s hear from my friend, NDPA Stalwart, Houston Law Immigration Clinic Director, Professor Geoffrey Hoffman:
Professor Geoffrey Hoffman Immigraton Clinic Director University of Houston Law Center
CAT a “dead letter” in the Fifth Circuit? I respectfully dissent
By Geoffrey A. Hoffman
This week a panel of the Fifth Circuit issued Tabora Gutierrez v. Garland, interpreting the Convention Against Torture’s (CAT’s) state action requirement so restrictively that it led the dissenting judge to call CAT a virtual “dead letter” in most cases (in the Fifth Circuit, at least).
In this piece, I want to consider this dire prognostication and also think about what it may mean for future practice – at least for those of us in the Fifth Circuit.
Two panel members found that petitioner failed a key requirement for relief: that the government in Honduras “consented or acquiesced” to the torture. In dissent, Judge W. Eugene Davis remarked, “I agree with the IJ, the BIA, and the majority that [petitioner] will likely be tortured by MS-13 gang members. . .[but] I read the record to compel a conclusion that the torture will be with the acquiescence of a public official.” According to Judge Davis, the majority raised the bar so high regarding this requirement under CAT that “for most if not all” people CAT will be out of reach, if they are from countries with (merely) corrupt policy or police without the will or courage to protect them from brutal gangs. While I agree with Judge Davis, the fact is CAT need not be a “dead letter” in the Fifth Circuit.
I was moved to comment on another split panel decision previously in the Fifth Circuit in Inestroza-Antonelli v. Barr, see my prior post here, and I am similarly moved to write about this present decision.
Significantly, the majority here carefully acknowledges up front that the BIA and IJ below found petitioner “likely to be tortured or killed” if returned to Honduras, and even catalogued the horrible injuries he had already suffered, mentioning “gruesome photos” that are part of the record in the case.
Because I think the majority erred, and would agree with most of what the dissenting judge says, let me address three issues where I think the majority got it wrong: (1) what it means for a record to “compel” a different conclusion on appeal; (2) what it means for a government to consent or acquiesce to torture and (3) the notion that Petitioner waived his argument about the correct standard of review merely by failing to bring it up in a motion to reconsider.
I address all three of these points below.
First, the majority importantly conceded in its opinion that the police “failed to investigate” petitioner’s injuries. However, because the Board and IJ interpreted these “failures” of the police as “better explained” by the fact the petitioner “was unable to disclose the specific identity of any of his attackers” this showed the police did not “willfully ignore” the attacks. The majority reasoned that the “evidence” did not “compel” a contrary conclusion and therefore the IJ’s findings, adopted by the BIA, were considered “conclusive.”
I am struck here by the notion that just because the BIA and IJ had inserted their own explanations for the unrebutted record evidence showing lack of any police action that this must have meant (according to the majority) that the appellate court was constrained to accept this explanation and would not disturb the lower tribunal’s interpretation of the evidence.
Such a reading of the word “compel” means that judges can have an “out” anytime they want to rubber stamp any decision of the Board, all they have to do is say the explanation offered characterizing the evidence in one way or another was good enough and must not be disturbed. But this is a very troubling proposition.
Take, for example, the present case where the supposition on the part of the BIA and IJ was that the petitioner was somehow at fault for not being able to identify his attackers by name. Think about that for a minute…Police are not acquiescing and not at fault and should not be held to have “turned a blind eye” because the victim was unable to identify his attackers.
But this does not make sense.
Such a blame-the-victim mentality goes against the motivation and underlying rationale behind other federal types of relief immigrants have available, for example, U visas for crime victims, VAWA, T visas, etc., premised in many cases on the victim’s cooperation with law enforcement and their investigation. Just because a victim does not know the exact identities of their attackers does not disqualify them from relief. Would that be a reasonable interpretation for example of the U visa statute and attendant regulations?
In addition, let’s consider the use of the “compel” standard for a minute and where it came from exactly. This standard, as acknowledged by the majority, comes from a previous case, Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006), among other cases. Chen in turn cites 8 USC 1252(b)(4)(B) and emanates from the Supreme Court’s famous decision, INS v. Elias-Zacarias, 502 U.S. 478 (1992), authored by Justice Scalia.
Chen was a case about a Chinese petitioner who converted to Christianity after entry into the U.S. and so her applications did not rely on past persecution but a well-founded fear of future persecution based on religion. The IJ in the former case found that there were “many Christians in China” and that Chen’s claims of future persecution were allegedly “highly speculative.” The facts of Chen and the current case relating to police inaction in Honduras could not be further apart. Moreover, the Fifth Circuit in Chen was not considering past persecution, as here, but the more difficult to prove “future persecution” and well-founded fear standard.
Similarly, Justice Scalia in Elias-Zacarias was concerned about proof supporting a political opinion claim. In that case, the Supreme Court found that the petitioner could not produce evidence “so compelling” that no reasonable factfinder could fail to find the requisite fear of persecution on account of political opinion. The “so compelling” language has been used by many courts to deny asylum on many other grounds throughout the past decades and has not been limited to political opinion claims.
But the reliance in the present case for the “compel” standard on the statute in question, 8 USC 1252(b) here is misguided. The statute states in pertinent part as follows: “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .” But the “consent and acquiescence” determination under CAT is not a determination of “administrative facts” but is certainly a mixed question of law and fact. As such, the entire structure of the “compel” standard should not have been applied but instead de novo review applied.
And this brings me to the practice pointer that this case so unfortunately stands for. Although on appeal before the circuit court the issue of standard of review was raised by petitioner, it was rejected by the majority on the theory that he had to have filed a “motion to reconsider” before the Board to preserve the issue for appellate review.
This waiver argument has always seemed to me a weak and tenuous one.
For example, what if the petitioner (i.e., the respondent before the BIA) argued in his brief to the Board that the correct standard of review was de novo due to the mixed question raised by a very complicated “consent or acquiescence” determination under CAT, and courts have so held, but the BIA decided to just rubber stamp the IJ and refused to overturn the IJ’s finding based on clear error. Wouldn’t that have preserved the issue? Why is there a need for a litigant to then file a motion to reconsider after the fact to preserve an issue which had already been preserved? To make matters worse it appears Mr. Tobora Gutierrez appeared pro se, see page 3 of the Fifth Circuit majority decision, at least initially. The decision does not reveal if he had appellate counsel before the BIA. But if he did not it would be an especially onerous requirement to impose an “after the fact” requirement that a litigant must file a “motion to reconsider” to preserve an issue for appellate review, especially if he is unrepresented.
All of that said, the practice take-away here is: (1) everyone must file a very carefully drafted and thorough motion to reconsider on all issues that could be in any way (mis-)interpreted to be subject to waiver so you preserve all issues for review before the circuit courts; and (2) everyone should read Judge Davis’ cogent and reasoned dissenting opinion, which hopefully will be followed instead of the majority’s strained application of the “compel” standard. Judge Davis was right: the evidence does compel a different outcome. Judge Davis does a wonderful job also of distinguishing the prior case law in this area and showing how Mr. Tobora Gutierrez’s case is fundamentally different. As he says, “if the egregious facts of this case are not sufficient to support a finding of public-official acquiescence, CAT relief will be a dead-letter to most if not all individuals who live in countries where the police are corrupt or simply do not have the will or courage to protect them from brutal gang attacks.”
Judge Davis is right, this is a most troubling decision but not just for the reason he provides. It is troubling for the further reason that the majority applies the wrong legal standard here, the “compels” standard versus a de novo review. The majority also leaves the door open for “deferred action,” for this sympathetic and horrendous case, although it declines to recommend it. Most importantly, it also leaves the door open for de novo review, in future cases, at least where those litigants are perceived to have preserved the issue. Litigants can do this by filing a motion to reconsider with the BIA, then filing (another, second) petition for review when the motion to reconsider is denied, and then (following the procedure mandated by section 1252) consolidating the two cases.
(Institution for identification only)
Geoffrey Hoffman
Clinical Professor, UHLC Immigration Clinic Director
Let’s not forget that Garland’s DOJ defended this grotesque miscarriage of justice. In a grim way, Geoffrey’s “practical scholarship” ties in nicely with Ruth Marcus’s recent op-ed in WashPost on the righto-wacko 5th Circuit’s dangerous assault on American justice:
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Opinion: The 5th Circuit is staking out a claim to be America’s most dangerous court
Opinion by Ruth Marcus
August 31 at 6:37 PM ET
The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process.
The 5th is arguably the most conservative among the country’s dozen appeals courts. It inclined in that direction even before President Donald Trump managed to install six nominees. And they constitute quite a bunch: Stuart Kyle Duncan, who said the Supreme Court’s 2015 ruling establishing a right to same-sex marriage “imperils civic peace” and “raises a question about the legitimacy of the court.” Cory Wilson, who tweeted about Hillary Clinton using the hashtag #CrookedHillary, called the Affordable Care Act “illegitimate” and said he supported overturning Roe v. Wade. James C. Ho, who issued a concurring opinion lamenting the “moral tragedy of abortion.”
How conservative is the court, where 12 of 17 active judges were named by Republican presidents? “As conservative a federal appeals court as any of us have seen in our lifetimes,” says Stephen I. Vladeck, a law professor at the University of Texas, noting that even as the circuit’s conservatives tend toward the extreme end of the spectrum, its liberals aren’t all that liberal.
One measure: During each of the last two Supreme Court terms, with conservative justices firmly in the majority, the high court has reviewed seven cases from the 5th Circuit. It reversed 6 of 7 decisions in the 2019-2020 term and 5 of 7 in 2020-2021.
These included the appeals courts’ rulings striking down the Affordable Care Act and upholding the constitutionality of a Louisiana abortion law, identical to a Texas statute the justices had tossed out several years earlier — another 5th Circuit special reversed by the high court. If you thought the appeals court judges would have learned their lesson the first time, you don’t know the 5th Circuit.
Texas can ban the abortion procedure most commonly used to end second-trimester pregnancies, a federal appeals court ruled on Aug. 18. (Reuters)
The circuit’s latest shenanigans involve, unsurprisingly, abortion, and Texas’s latest attempt to eviscerate abortion rights. This Texas law, which goes into effect Wednesday, is both blatantly unconstitutional (it purports to prohibit abortion once there is a detectable fetal heartbeat, around six weeks into pregnancy) and an audacious effort to evade judicial review (it leaves enforcement of the ban up to private vigilantes, not state officials.)
In this effort to end-run and effectively overturn Roe v. Wade, the 5th Circuit has already proved itself an eager co-conspirator. Texas abortion clinics filed suit in federal court challenging the law and seeking to block it from taking effect. A federal judge had scheduled a hearing on whether to grant such an injunction.
But on Friday a panel of the 5th Circuit — two Trump judges and one Reagan appointee — issued an extraordinary order preventing the district judge from going ahead with the hearing, thus letting the law take effect in the interim — all this even as the appeals court refused to speed up its consideration of the case. In a sign of their desperation, the clinics appealed that action to the Supreme Court, not exactly a friendly venue these days for abortion rights.
. . . .
Read the rest of Ruth’s op-ed at the link.
But, the right-controlled Supremes aren’t going quietly into the night in this competition. The right to a reasoned decision from a fair and impartial decision-maker is fundamental to Constitutional due process — except at the Supremes. The righty majority now employs the “shadow docket” to avoid explanation and accountability for some of it’s most outrageously scofflaw decisions! Many of these have hurt or even killed migrants. David Leonhardt @ NY Times explains:
Davide Leonhardt Journalist NY Times PHOTO: Wikipedia
This one came out shortly before midnight on Wednesday. It consisted of a single paragraph, not signed by the justices who voted for it and lacking the usual detailed explanation of their reasoning. And there had been no oral arguments, during which opposing lawyers could have made their cases and answered questions from the justices.
Instead, the opinion was part of something that has become known as “the shadow docket.” In the shadow docket, the court makes decisions quickly, without the usual written briefings, oral arguments or signed opinions. In recent years, the shadow docket has become a much larger part of the Supreme Court’s work.
Shadow-docket rulings have shaped policy on voting rights, climate change, birth control, Covid-19 restrictions and more. Last month, the justices issued shadow decisions forcing the Biden administration to end its eviction moratorium and to reinstate a Trump administration immigration policy. “The cases affect us at least as much as high-profile cases we devote so much attention to,” Stephen Vladeck, a University of Texas law professor, told me.
Shadow-docket cases are frequently those with urgency — such as a voting case that must be decided in the final weeks before an election. As a result, the justices don’t always have time to solicit briefs, hold oral arguments and spend months grappling with their decision. Doing so can risk irreparable harm to one side in the case.
For these reasons, nobody questions the need for the court to issue some expedited, bare-bones rulings. But many legal experts are worried about how big the shadow docket has grown, including in cases that the Supreme Court could have decided in a more traditional way.
“Shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters,” Moira Donegan wrote in The Guardian. “In recent years the court has largely dispensed with any meaningful application of the irreparable harm standard.”
Why the shadow docket has grown
Why have the justices expanded the shadow docket?
In part, it is a response to a newfound willingness by lower courts to issue decisions that apply to the entire country, as my colleague Charlie Savage explains. By acting quickly, the Supreme Court can retain its dominant role.
But there is also a political angle. Shadow-docket cases can let the court act quickly and also shield individual justices from criticism: In the latest abortion case, there is no signed opinion for legal scholars to pick apart, and no single justice is personally associated with the virtual end of legal abortion in Texas. The only reason that the public knows the precise vote — 5 to 4 — is that the four justices in the minority each chose to release a signed dissent.
Critics argue that judges in a democracy owe the public more transparency. “This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Nicholas Stephanopoulos, a Harvard law professor, has said. “If courts don’t have to defend their decisions, then they’re just acts of will, of power.”
During a House hearing on the shadow docket in February, members of both parties criticized its growth. “Knowing why the justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public’s trust in the court’s integrity,” Representative Henry Johnson Jr., a Georgia Democrat, said. Representative Louie Gohmert, a Texas Republican, said, “I am a big fan of judges and justices making clear who’s making the decision, and I would welcome reforms that required that.”
The shadow docket also leaves lower-court judges unsure about what exactly the Supreme Court has decided and how to decide similar cases they later hear. “Because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements,” writes William Baude, a University of Chicago law professor and former clerk for Chief Justice John Roberts. Baude coined the term “shadow docket.”
Six vs. three
The court’s six Republican-appointed justices are driving the growth of the shadow docket, and it is consistent with their overall approach to the law. They are often (though not always) willing to be aggressive, overturning longstanding precedents, in campaign finance, election law, business regulation and other areas. The shadow docket expands their ability to shape American society.
The three Democratic-appointed justices, for their part, have grown frustrated by the trend. In her dissent this week, Justice Elena Kagan wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.” In an interview with my colleague Adam Liptak last week, Justice Stephen Breyer said: “I can’t say never decide a shadow-docket thing. … But be careful.”
Roberts also evidently disagrees with the use of the shadow docket in the Texas abortion case. In his dissent, joining the three liberal justices, he said the court could instead have blocked the Texas law while it made its way through the courts. That the court chose another path means that abortion is now all but illegal in the nation’s second-largest state.
The justices are likely to settle the question in a more lasting way next year. They will hear oral arguments this fall in a Mississippi abortion case — the more traditional kind, outside the shadows — and a decision is likely by June.
Read more from David in “The Morning” e-mail from the NYT.
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Abrogating a treaty, intellectual dishonesty, neutering Federal statutes and regulations, scoffing at Constitutional due process, disregarding decency and human life (at least “life after birth”), AND illegally sending another human back to be tortured to death is indeed a “hard act to follow” and makes the 5th a serious contender. But, remember where this “opportunity to dump on migrants” came from!
Immigration practitioners will tell you never to underestimate the sloppiness, lack of expertise, irresponsibility, disdain for due process, and disregard for human lives that has become institutionalized at Garland’s “Miller Lite” captive appeals “court,” the BIA! And, like the Supremes and unlike the 5th Circuit, the BIA has nationwide jurisdiction and sets national precedents. But, unlike the Supremes, who decide fewer than 100 cases in an average year, the BIA assembly line charms out 20,000 to 30,000 cases annually through its defective processes, and it’s lousy, one-sided, anti-immigrant precedents and reactionary guidance that destroy thousands of lives and futures in Immigration Court every day!
So, when it comes to worst court of today, don’t count out the BIA!
Charlotte Klein Staff Writer Vanity Fair PHOTO: Twitter
The “Commanding Generals” of this effort are unprincipled, far-right GOP jurists. Their initial targeted victims are, of course, the usual vulnerable suspects: migrants, asylum seekers, women, voters of color, transgender kids, the poor, union members, etc. But, eventually, all of us who reman true to liberal democratic values will be targeted for some kind of punishment. Immigration “led the way” in the “Dred Scottfication of the other” by the Supremes at the behest of the Trump kakistocracy. But, don’t think that’s where this heinous resuscitation of one of the worst cases in American jurisprudence will end!
Meanwhile, this latest phase of the assault has unleashed the usual Dem arsenal of feckless weaponry, including:
Statements of outrage untied to realistic possibilities;
Largely meaningless public demonstrations that are “media events” and not much else;
Idle threats of reprisals;
A barrage of op-eds decrying that the fringe radical right and their relatively unpopular agenda has once again outflanked liberals who represent the views and values of the majority;
Statements of fact that have no material effect (public support for the complete elimination of abortion, al la Texas, the 5th, and the Supremes holds steady at 8%, while a large majority of Americans favor abortion in some form or another — explain how that has made a difference — also, does anybody really think that these right wingers give a fig that many women will die from illegal abortions and others will be saddled with unwanted children — the only part of human life that creates much compassion or empathy for this righty gang is that which occurs prior to birth);
Appeals to precedent, fairness, decency, reasonableness, confirmation promises, and respect for the law addressed to a party and its jurists who value none of these things if they get in the way of their authoritarian agenda.
But, Dems, here’s a better idea! For once, why not try a different approach and actually work within what you DO control and CAN change? Something that will showcase the positive attributes of honest, expert, progressive judging while developing best practices and saving lots of lives in the process. What do you have to lose, Dems? Can actually doing something to combat right-wing control of the judiciary rather than just impotently raging against it produce a worse result than you have already achieved — even when controlling the Executive, House, and Senate?
There is not much in the immediate future that Biden and the Dems can (and are willing to) do to change the composition and tenor of the Supremes and the 5th Circuit. But Biden and Garland have complete control over the “Miller Lite” BIA and the Immigration Courts!
A new, well-qualified, BIA comprised of progressive expert judges unswervingly committed to scholarship, quality, due process, respect for migrants and their attorneys, and correct results could (and should) be installed by now. But, disgracefully, it isn’t! Progressives need to hold Biden’s and Garland’s feet to the fire until they create the positive change they promised, but have not delivered!
Then, once a new BIA is in place, go to work on re-competing all Immigration Judge jobs on a merit basis, incorporating key progressive values and real-life experiences, and also involving input from practitioners and outside experts in the area. Create a better progressive Federal Immigration Judiciary and let it lead the way to restoring due process, best practices, efficiency, humanity, fundamental fairness, and integrity to our broken immigration system!
Humanity is suffering! Garland must pull the plug 🔌 on the “BIA Clown Show” 🤡 before it kills ⚰️ anyone else! Pull the BIA from the “Most Dangerous Court In America Competition” before they can “win” it. A “win” for the BIA would certainly be a “loss” for America!
“Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the petitioners filed a motion requesting that the Board remand their case so that they could seek a continuance from the Immigration Judge pending the resolution of their derivative U visa applications. The Board dismissed their appeal and denied their motion to remand, reasoning that their “U-visa eligibility and the steps being taken in pursuit of a U-visa could have been discussed at the hearing before the Immigration Judge entered a decision.” For the narrow ground articulated herein, we hold that the Board abused its discretion in its reason for denying the petitioners’ motion to remand. … Espinal-Lagos did not become prima facie “eligible” for a derivative U visa until her husband filed his U visa application with USCIS on July 6, 2018—several months after her hearing before the IJ on February 7, 2018. Indeed, during oral argument when asked, “When was Ms. Espinal-Lagos eligible for a U visa?”, the Government responded that she was “eligible when it’s filed”—“it” being Bethanco’s U visa application.1 The position the Government urges—that Espinal-Lagos should have disclosed to the IJ her potential future eligibility given the district attorney signature on her husband’s U visa certification— has no basis in the regulations. Therefore, the Board’s denial of Espinal-Lagos’s motion to remand was based on a legally erroneous interpretation of the governing regulations. Navarrete-Lopez, 919 F.3d at 953. The Board’s decision was also irrational because it required Espinal-Lagos to have presented information to the IJ that could not have been discovered or presented at that time. … Because the Board abused its discretion in its single reason for denying Espinal-Lagos’s motion to remand, we grant the petition for review and REMAND to the Board for proceedings consistent with this opinion.”
Although this case is unpublished, it’s significant for these reasons:
The “super-conservative” 5th Circuit seldom reverses removal orders;
Granting the legally-required remand in this case would have been about a 30-second “adjudication” (tops) by a competent BIA appellate judge;
Instead of confessing error and asking for a remand, OIL defended this clearly wrong garbage, a likely violation of ethics, an abuse of the Circuit Court’s time, and dilatory action that took the Fifth Circuit two years to correct;
Why would a rational, ethical system even want to remove a family eligible for derivative U status, let along violate the law and make extra work to achieve an irrational, inhumane, and counterproductive result;
For Pete’s sake, this was an UNOPPOSED MOTION TO REMAND at the BIA, but incompetent judges, bad lawyering, and a vile anti-immigrant culture at DOJ created an unnecessary disaster;
As those of us who are actually familiar with the EOIR system know, mistakes like this are a daily, if not hourly, occurrence at today’s thoroughly dysfunctional EOIR! It’s just that relatively few individuals are fortunate to have the time, knowledge, and competent legal assistance to obtain justice at the Court of Appeals level.
NO, Judge Garland, as all outside experts have been telling you, the answer to largely unnecessary, self-created, out of control EOIR backlogs is NOT “dedicated dockets,” idiotic quotas, more mindless gimmicks, or even throwing more judges into an already out of control and dysfunctional system.
It starts, but does not end, with replacing the BIA and incompetent judges at EOIR with qualified progressive experts, bringing in dynamic progressive judicial leadership that solves problems rather than creates them, ending the anti-immigrant “culture of denial” at EOIR and DOJ generally, installing real, due-process-focused training and giving new progressive expert judges independence to establish and enforce quality decision-making, due process, and best practices!
Also, OIL needs a remake and some leadership from skilled, progressive immigration litigators committed to “speaking for justice,” using judicial time wisely, and making the system work rather than mindlessly assisting in the building of backlog.
Due process is a team effort! Sadly, after four years of enabling and defending the indefensible actions of the Trump fascist kakistocracy, there aren’t many folks out there at EOIR and DOJ generally who can “play this game.”
“Can’t anyone here play this game?” So far, the answer at Garland’s EOIR is a resounding “No!” PHOTO: Rudi Reit Creative Commons
🇺🇸Due Process Forever!
PWS
08-27-21
ADDENDUM:
Even as I was writing this, Dan Kowalski sent me yet another 5th Circuit BIA remand. This one was on “divisibility” and was the result of three years of litigation to correct the BIA’s unprofessional work. THAT’S what generates unnecessary backlogs! Efficiency comes from getting thing right in the first instance, particularly when proceedings should be terminated or relief granted.
“Sajid Momin Wali, a native and citizen of Pakistan, became a lawful permanent resident in 2012. In 2017, he pleaded guilty in Texas state court to possession with intent to deliver a synthetic cannabinoid. As a result, he was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a state-law crime relating to a controlled substance defined in the Controlled Substances Act, 21 U.S.C. § 802. Both the Immigration Judge and the Board of Immigration Appeals sustained that removability determination, concluding that although the Texas statute that formed the basis of Wali’s conviction was broader than the Controlled Substances Act, Wali was removable because the Texas statute under which he was convicted was divisible. After the BIA issued its decision, this court decided Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir. 2021). Under Alejos-Perez, the BIA’s determination that Wali’s statute of conviction was divisible was error. Accordingly, we grant Wali’s petition for review, reverse the BIA’s order, and remand for the BIA to reconsider whether Texas Penalty Group 2-A is divisible in light of Alejos-Perez.”
[Hats off to Amber Gracia for fighting this case since 2018!]
Amber García, Esquire Houston, TX PHOTO: AVVO
*******************
Way to go, Amber! Welcome to the NDPA “star circle!” 🌟 Amber knows “crimigration!” Why doesn’t the BIA?
Why hasn’t Garland brought in better progressive judges? Why does he think the human lives and futures at stake in Immigration Court are expendable? ☠️👎🏽🤮
This is NOT, I repeat NOT, how an “expert court” functions! And, you can’t create and operate an expert court without experts. The “expertise” needed to fix this system is primarily on the outside. Garland needs to make long overdue personnel, leadership, structural, and attitude changes at EOIR! Lives are at stake, and they are “chargeable” to Garland!
🇺🇸DPF!
PWS
08-27-21
ADDENDUM #2
BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”
Here’s yet another unpublished rebuke from the 2d Cir. on EOIR’s “any reason to deny worst practices” sent in by my colleague “Sir Jeffrey” Chase of Round Table ⚔️🛡fame:
We conclude that the BIA and IJ erred by relying on an alleged inconsistency between Tamrakar’s testimony before the IJ that the Maoists threatened him and tried to grab him before he escaped and Tamrakar’s statement during his credible fear interview that the Maoists left after threatening him to support its adverse credibility determination without first raising that discrepancy to Tamrakar. That inconsistency was not “self-evident,” Ming Shi Xue, 439 F.3d at 114, because, during the same credible fear interview, Tamrakar stated that the Maoists “tried to grab [him] but [he] ran away from them.” A.R. at 369. This statement was consistent with his testimony. Because the IJ and BIA “relied on the combined force of [three] inconsistencies,” Singh, 2021 WL 3176764, at *7, and did not provide Tamrakar the opportunity to explain one of them, we “cannot confidently predict whether the agency would adhere to [its] determination absent [its] error[].” Id. at *4. Further lessening our confidence, one of the other inconsistencies that the BIA and IJ relied on (whether Tamrakar’s friend accompanied him during the first incident or not) is closely analogous to one that our Court determined gave “no substantial support” to an adverse credibility finding on its own. Id. at *8 (noting that an inconsistency regarding whether a third party accompanied the petitioner to the police station after a key attack could be explained by differing recollections or another innocent explanation). Because we cannot confidently predict what the agency would do absent error, we vacate its decision.
Unfortunately, chronically sloppy work and wrongful denials have become so “routinized” at EOIR that the Circuits don’t even publish many of them any more! But, there are plenty of them out there!
They are just the “tip of the iceberg” of the systemic unfairness, racially-tinged bias, utter disdain for due process, lack of equal justice, unprofessionalism, glaring lack of expertise, and gross abuse of Government resources taking place in “Garland’s Star Chamber/Clown Courts!” Even one of these these is one too many!
The Human Rights advocacy community needs to organize and demand progressive changes from Garland, starting with long-overdue personnel and leadership changes at EOIR! How many more vulnerable individuals will be wrongfully denied or deported before a “responsible government official” (of which there seems to be as distinct shortage at Garland’s DOJ) pulls the plug 🔌 on this ongoing, intolerable human rights and racial justice farce going on at the DOJ!
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — As asylum seekers and their fearless advocates suffer and the Immigration “Courts” disintegrate, there appears to be no end to “Garland’s Miller-Lite Happy Hour” @ DOJ!
Dan Kowalski Reports for LexisNexis Immigration Community:
“Daljinder Singh applied for asylum and protection under the Convention Against Torture, claiming that he feared persecution in India based on his membership in the Akali Dal Amritsar (“Mann Party”), a Sikh-dominated political party. The presiding immigration judge (“IJ”) denied his application, finding Singh not credible. The Board of Immigration Appeals (“BIA”) dismissed Singh’s appeal. Singh filed a petition for review and moved for a stay of removal. We granted Singh an emergency stay of removal pending further order. We now grant Singh a stay pending review of his petition. … Singh raises two principal arguments in his petition for review. First, he contends that the IJ’s near total denial rate for asylum applications reflected a bias and violated Singh’s due process rights. Second, he challenges the BIA’s conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination. We conclude that Singh has made the requisite showing that he is likely to succeed on the merits of both claims. … The IJ here [Agnelis Reese] denied relief to asylum seekers in 203 of the 204 cases she presided over from 2014 to 2019, a denial rate of 99.5%. … … Given the accounts of multiple witnesses to the attacks on Singh, medical records, images of the attacks on his father, and witness testimony regarding the BJP’s continued pursuit of Singh, Singh has made the requisite showing that the totality of the evidence does not support the IJ’s credibility determination. The appearance of bias painted by the denial of 203 of 204 asylum applications and the IJ’s adverse-credibility determination, informed by her noncompliance with the procedural safeguards of Matter of R-K-K-, are here interlaced. We do not suggest that a high percentage of denials is sufficient to avoid an IJ’s otherwise valid credibility determinations. Indeed, patterns in applicants’ presentations are likely and may necessarily result in a higher denial rate if the shared basis for relief is inadequate. But here, the incredibly high denial rate, when coupled with the IJ’s noncompliance with Matter of R-K-K-, presents a substantial likelihood that Singh will be entitled to relief upon full consideration by a merits panel. … Accordingly, we GRANT Singh’s motion for a stay pending review of his petition.”
So, if the 5th Circuit and a “reasonable man” could figure out this isn’t “justice,” by any stretch of the imagination, why on earth 1) can’t Garland do likewise, and 2) does he continue to have his lawyers defend this disgraceful nonsense and waste of taxpayer money? Reese has previously been “featured” in Courtside for her “Kafkaesque” approach to “justice” for asylum seekers. Several years ago, I spoke at a Louisiana State Bar CLE event where attorney after attorney shared their “horror stories” about Reese. Yet, she managed to last for more than two decades over four different Administrations, two Democratic and two Republican.
Thankfully for American justice, Judge Reese retired in 2020, after more than two decades of abusing asylum seekers and disgracing the Immigration Courts! But, she was by no means the only unqualified Immigration Judge who helped create disgraceful and illegal “Asylum Free Zones” in Immigration Courtrooms throughout America.
A number of members of the “Asylum Denial Club” remain on the bench @ EOIR. Outrageously,some of them were even “rewarded” with appointments to the BIA by the previous Administration!
Rather than swiftly moving to replace the BiA and then commencing a thorough, long overdue “housecleaning” of unqualified judges and managers at EOIR, Garland, Monaco, Gupta, and Clarke have dawdled as asylum seekers continue to be abused, mistreated, denied due process, and justice mocked at EOIR. A civil rights/racial injustice/due process crisis of gargantuan proportions is going on right under their noses, and they have done very little to acknowledge or address it!
Not to mention that under Garland’s lackadaisical leadership the Immigration Courts continue to build unnecessary backlog at “Trumpian” rates. It’s not like experts haven’t brought the grotesque injustices and defects of EOIR to the attention of the Biden Administration and Garland!
One might ask just what Garland and his top lieutenants are doing to earn their pay? The answer is “not much” to date from a progressive standpoint!
Experts and advocates should be “raising hell” with the Biden Administration about the deficient due process and racial justice leadership at the DOJ! American justice deserves better! Much better!
And, the other Circuit Courts (particularly the 11th Circuit) that have looked the other way at the biased decision-making and other unconstitutional travesties of justice going on in Immigration Court on a regular basis don’t look so good either!
“The NTA sent to Villegas de Mendez does not contain the information required to trigger the stop-time rule. See id. at 1478-79, 1485; see also § 1229(a)(1)(A)-(G). Neither does the subsequent notice of hearing sent to her. Thus, she did not receive the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct. at 1485. The BIA consequently abused its discretion by committing an error of law. See Koon v. United States, 518 U.S. 81, 100 (1996); Ramos-Portillo v. Barr, 919 F.3d 955, 958 (5th Cir. 2019); Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014). Therefore, the petition for review is GRANTED and the case is REMANDED to the BIA for further consideration in light of Niz-Chavez, 141 S. Ct. 1474, and consistent with this judgment.”
One major problem with constantly going with DHS interpretations is that many are both legally wrong and practical disasters. After the initial Pereira v. Sessions debacle the BIA had a chance to solve the problem. Instead, undoubtedly spurred on by the “deny everything culture” promoted by the Trump regime’s White Nationalist agenda, the BIA chose the worst possible legal interpretation with disruptive practical implications. Any real immigration expert could have seen this coming!
When was the last time in a potential “Chevron-type” situation that the BIA or the AG adopted the migrant’s proffered interpretation rather than DHS’s? Yet even with all the (in my view highly inappropriate) advantages conferred on the Government by the Supremes’ intellectual indolence in Chevron and its absurdist companion “Brand X,” Article III Courts, including the Supremes, reject BIA/AG interpretations on a regular basis. Pereira and Niz-Chavez are just two of the most prominent recent examples.
Moreover, because neither the AGs nor the BIA are respected experts in immigration and human rights, and, shockingly, none have significant experience representing individuals in Immigration Court, the mis-interpretations that they choose are often impractical and unworkable. This, in turn leads to confusion, unnecessary remands, and unmanageable backlogs, not to mention patent injustice and deadly results for the mere humanscaught up in this ongoing disaster! This is what “Dred Scottifcation” is all about!
The case highlighted above should have been reopened in 2017. In a “real” court system, with qualified judges, professional administration, and no political interference, it could have been completed by now. Instead, it’s no closer to completion than it was four years ago!
But, lots of time and resources have been wasted in defending the BIA’s wrong attempt to deny reopening! This nonsense by the Government, NOT dilatory tactics by migrants and their attorneys trying to navigate this intentionally user-unfriendly and often illegal and illogical system, is what “builds backlog!”
Indeed, a wiser system would have turned preliminary adjudication of these cases over to USCIS so that only those that could not be granted and were not appropriate for prosecutorial discretion (“PD”) would have been sent to Immigration Court. Virtually none of the “non-LPR cancellation” cases are legitimate enforcement priorities. A similar approach was used with the NACARA program under better overall management.
Instead, as a result of poor BIA decision-making and even worse “leadership” at the Trump DOJ, this case is no closer to a final resolution than it was in 2017. And, DHS and EOIR still haven’t systemically corrected the completely fixable practical problems that generated Pereira and Niz-Chavez in the first place. Nor have Garland and Mayorkas announced systemic plans for removing the unnecessary “cancellation backlog” from Immigration Court dockets even though they would be “low priorities” for ICE under the criteria announced by OPLA’s John Trasvina!
That’s why we have unmanageable backlogs! And they will continue until Garland cleans house at EOIR, brings in a diverse group of qualified expert judges, and empowers them to act independently, stand up to the frequent nonsense pushed by DHS, and “laser focus” on due process for individuals and instituting and enforcing best practices!
One of the most obvious of those “best practices,” totally missing from Garland’s mismanaged Immigration Courts to date, would be returning “docket control” to local Immigration Courts and ending the “Aimless Docket Reshuffling” by EOIR Headquarters and DOJ politicos that has helped generate the out of control backlog.
Many cancellation of removal cases could and should be “administratively closed.” But, inexplicably, Garland has yet to revoke Sessions’s ridiculously wrong Matter of Castro-Tum, and restore to Immigration Judges their power to administratively close cases. That’s notwithstanding that Castro-Tum has been rejected in whole or in part by every Circuit Court of Appeals to consider it.
How long is Garland going to continue to “sponsor” inferior, non-independent, pro-DHS “judging” and amateurish, politicized mismanagement that is destroying our entire legal system?
“Petitioner Wilber Agustin Acevedo Granados (“Acevedo”), a native of El Salvador, petitions for review of the decision by the Board of Immigration Appeals (“BIA”) affirming an order of removal and the denial by the Immigration Judge (“IJ”) of Acevedo’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Acevedo’s petition is based on his fear that, if returned to El Salvador, he would face persecution or torture on account of his membership in a particular social group, defined based on his intellectual disability. The BIA rejected Acevedo’s claims on the ground that the proposed group definition was not cognizable. The BIA held that Acevedo’s proposed social group was not sufficiently particular, finding that the terms “intellectual disability” and “erratic behavior” rendered the proposed group “amorphous, overbroad, diffuse,[and]subjective.” The BIA further determined that the group was not a “meaningful social unit, distinct from the larger population of mentally ill individuals” in El Salvador. We conclude that the agency misunderstood Acevedo’s proposed social group, and thus grant the petition for review with respect to the claims for asylum and withholding of removal. The BIA and IJ treated the term “intellectual disability” as if it were applied by a layperson. Instead, that term as used in Acevedo’s application referred to an explicit medical diagnosis with several specific characteristics. Recognized that way, the clinical term “intellectual disability” may satisfy the “particularity” and “social distinction” requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, we remand to the agency for fact-finding on an open record to determine if the group is cognizable.”
[Hats off to Prof. Evangeline Abriel and her Certified Law Students Keuren A. Parra Moreno (argued) and Jared Renteria (argued)!]
2) 8th Cir. — BIA Goofs On “Aggravated Felony” Analysis
“In May 2017, an Immigration Judge (IJ) determined that Lopez-Chavez is ineligible for cancellation of removal because his 2006 federal conviction for illegal reentry in violation of 8 U.S.C. § 1326 qualifies as an aggravated felony. The Board of Immigration Appeals (BIA) affirmed the IJ’s ruling and dismissed Lopez-Chavez’s administrative appeal the following year. The question now before the court is whether Lopez-Chavez’s 2006 conviction qualifies as an aggravated felony under the INA, thus making Lopez-Chavez statutorily ineligible for cancellation of removal. We hold that it does not. … Because Lopez-Chavez’s 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. § 1101(a)(43)(B), the 2006 conviction for illegal reentry under § 1326 does not qualify as an aggravated felony under § 1101(a)(43)(O). Accordingly, Lopez-Chavez is not statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b. We grant the petition for review, vacate the BIA’s order, and remand for proceedings consistent with this opinion.”
“[T]o decide whether his 2018 conviction renders him removable, we need to determine whether we can parse MMB-Fubinaca from those other drugs; we decide that by determining whether Penalty Group 2-A is divisible. The government says it’s divisible, Alejos-Perez says not. … Because the government has not shown that the modified categorical approach is called for, we apply the categorical approach. … Because Penalty Group 2-A is not a categorical match, we must identify the appropriate result. … Once it’s clear that Penalty Group 2-A is not a categorical match to its federal counterpart, AlejosPerez “must also show a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of the crime” under federal law. We are unable to resolve that issue, because the BIA didn’t address it, and we can “only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.” … We thus remand for consideration of whether Alejos-Perez has shown a realistic probability that Texas would prosecute conduct that falls outside the relevant federal statute.”
Significantly, the 5th Circuit’s rejection of the BIA’s analysis was written by very conservative Circuit Judge Jerry Smith, a Reagan appointee. Judge Smith wrote the majority opinion upholding the legally questionable injunction against President Obama’s “DAPA Program” — something many scholars believe to have been a entirely legitimate exercise of prosecutorial discretion. (The case later was lamely affirmed w/o opinion by an evenly divided Supremes.)
Even conservative Federal Judges not known for sympathy to immigrants and their legal rights appear to have grown weary of the BIA’s consistently sloppy attempts to rule against foreign nationals, regardless of the merits. This is the second rejection by the normally reliably pro-Government 5th Circuit in the last several weeks!
Ironically, one (former) Federal Judge who appears not bothered by the BIA’s defective jurisprudence is the current Attorney General, Judge Garland. He’d better get himself a “tomato resistant”🍅 raincoat to wear at work. This is just the beginning. His reputation and credibility will diminish every day that he fails to replace the BIA with competent jurists who will give migrants the fair and impartial treatment that our Constitution demands, but the DOJ’s “captive court” constantly fails to deliver!
And, leaving aside the legal ineptitude, there can be no excuse for the stunning level of dysfunction and incompetence in how one of the nation’s largest so-called “court” systems is administered by EOIR under DOJ. No tribunal in America issues more potential “death sentences” with less due process! Not exactly what Mies Van Der Rohe had in mind when he famously said “the less is more.”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Poor “Belly-Up Eyore.” He was forlornly, and apparently vainly, hoping to be “put out to pasture” after Judge Garland took over the helm at DOJ. Such high expectations!
But, he is already exhausted again by all the continuing “calls to duty on Courtside” after just 22 days of Judge Garland’s “where’s Falls Church” approach to the ongoing EOIR disaster/travesty! Judge, here’s the key; just think like it wereyour children or grandchildren, actual human beings, being orbited into the abyss without much attention to the law, our Constitution, common sense, or human decency! Maybe starting each day with a briefing on each Article III case that was wrongly decided in your name by the BIA and a live reading of each outrageous media story about disorder in your Immigration Courts would help raise your consciousness? Maybe you should speak with a few of the “customers” of your “courts” that put public service last. Men, women, children, and their lawyers are being abused out there every day by EOIR and you are legally and morally responsible.
You can’t lead the fight for racial justice in America while running a bogus court system that denies and mocks it on a daily basis!
Hon. Merrick B. Garland Attorney General of The United States & Eyore’s Boss, Official White House Photo Public Realm
“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Morales Lopez v. Garland, 5th Cir., 03-19-21, unpublished
PANEL: Southwick, Graves, and Engelhardt, Circuit Judges
OPINION BY: James E. Graves, Jr., Circuit Judge
KEY QUOTE:
Morales Lopez argues that the IJ improperly determined that she did not make a sufficient showing of past persecution and a well-founded fear of future persecution. Regarding past persecution, Morales Lopez argues that the IJ erroneously (1) required each incident of harm to rise to the level of persecution, (2) failed to consider all relevant incidents of harm, (3) required a showing of physical harm, and (4) failed to consider significant liberty deprivations suffered by Morales Lopez and her children. Morales Lopez further argues that (5) the substantial evidence compels a finding of past
10
Case: 18-60251 Document: 00515788451 Page: 11 Date Filed: 03/19/2021
No. 18-60251
persecution and (6) the IJ erred by failing to consider Morales Lopez’s psychological harm.
Regarding a well-founded fear of future persecution, Morales Lopez argues that the IJ erroneously (1) applied a preponderance-of-the-evidence standard instead of a reasonable-possibility standard; (2) failed to evaluate Morales Lopez’s fear of future persecution using the four-part test set forth in In re Mogharrabi; (3) conflated the past-persecution and well-founded-fear- of-future persecution analyses, (4) required Morales Lopez to offer direct proof of her persecutors’ motives, and (5) mischaracterized Ungar’s testimony. Morales Lopez further argues that (6) the substantial evidence compels a finding of a well-founded fear of future persecution.
Although we neither agree with nor reach all of Morales Lopez’s arguments, we agree with her overarching point: the IJ and the BIA improperly determined that Morales Lopez did not make a sufficient showing of past persecution and a well-founded fear of future persecution. We address Morales Lopez’s arguments in turn.
**************
Hon. James E. Graves, Jr. U.S. Circuit Judge Fifth Circuit PHOTO: Wikipedia
Too bad this is unpublished. Once again, a Circuit Court has to provide the detailed analysis required by due process after the supposedly “expert” BIA commits error after error!
When they get below the “caption line” in an opinion, things go south fast for EOIR judges. I’d attribute that to a deadly combination of poor judicial selection, defective training, a “culture of prejudgement and denial,” large-scale overuse and misuse of the woefully inadequate and outdated “contemporaneous oral decision” format (not used by any other “court” for decisions of this importance and complexity), “haste makes waste” gimmicks, absurd “quotas,” inane “performance ratings,” constant political interference with decision-making, disastrously incompetent unprofessional docket management, and maliciously incompetent “leadership” from the DOJ. It’s an ungodly and inexcusable mess.
Sadly, my grim description doesn’t begin to capture just how embarrassingly unjust, unfair, dysfunctional, and just plain terrible EOIR’s “killer clown show” 🦹🏿♂️🤡 is. Not to mention that it is clearly unconstitutional, and a “livingrepudiation of due process” as currently constituted and operated. Put this pathetic imitation of a “court system”out of its misery before it causes any more destruction of human lives and irreparable damage to our justice system!
Judge Garland, where, oh where, are you in American justice’s hour of need? Stop this disgraceful mockery of justice, humanity, and common sense! Now!
In the meantime, as I had warned, Judge Garland’s previously sterling record as a jurist 👨🏻⚖️ is being tarnished daily by association with some of the worst jurisprudence out there, courtesy of America’s Star Chambers,🏴☠️ a/k/a “Clown Courts,” 🤡🦹🏿♂️ now wholly owned by HIM, and “operated” in HIS name!
🇺🇸⚖️🗽Due Process Forever! Clown Courts🤡🦹🏿♂️ & Star Chambers☠️🏴☠️⚰️, Never!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Members Unwind After Ignoring Mixed Motive, Failing To Analyze Evidence, Aiding Their “Partners” At ICE In Demeaning Justice, & Shafting More Asylum Seekers https://www.flickr.com/photos/rasputin243/ Creative Commons License
Here’s the complete (unfortunately) unpublished decision from the 5th Circuit (which seldom sees a deportation order they don’t want to “rubber stamp”) in Berhe v.Barr:
PANEL: PARKER, CHIN, and SULLIVAN, Circuit Judges.
OPINION BY: Judge Barrington D. Parker
DISSENTING OPINION: Judge Richard Sullivan
KEY QUOTE FROM MAJORITY:
Tomas Mendez was admitted to the United States in 2004 as a lawful
17 permanent resident. In 2010, he was convicted of misprision of a felony in
18 violation of 18 U.S.C. § 4. That section makes it a crime for one with knowledge
19 of the commission of a federal felony to conceal it and not promptly report it to
20 the appropriate authorities. 18 U.S.C § 4.
21 In 2016, upon returning from a trip abroad, the Department of Homeland
22 Security charged him, based on his misprision conviction, as inadmissible under
23 § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, because he was a
24 noncitizen convicted of a crime involving moral turpitude (“CIMT”). The
25 immigration judge sustained the charge, and the Board of Immigration Appeals
2
1 (“BIA”) affirmed. The BIA concluded that the violation of § 4 meant that he had
2 committed a CIMT. Matter of Mendez, 27 I. & N. Dec. 219, 225 (BIA 2018).
3 The BIA defines a CIMT as crime that is “inherently base, vile, or
4 depraved, and contrary to the accepted rules of morality and duties owed
5 between persons or to society in general.” Rodriguez v. Gonzales, 451 F.3d 60, 63
6 (2d Cir. 2006).1 For decades, the BIA never considered misprision a CIMT. Matter
7 of Sloan, 12 I. & N. Dec. 840, 842 (BIA 1966) (holding misprision does not
8 constitute a CIMT).
9 However, in 2002, the Eleventh Circuit held in Itani v. Ashcroft that a
10 conviction under § 4 is categorically a CIMT “because it necessarily involves an
11 affirmative act of concealment or participation in a felony, behavior that runs
12 contrary to accepted societal duties and involves dishonest or fraudulent
1 Unless otherwise indicated, in quoting cases all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.
3
1 activity.” 298 F.3d 1213, 1216 (11th Cir. 2002).2 Following the Eleventh Circuit’s
2 lead, the BIA did an about face and determined in a case arising in the Ninth
3 Circuit that misprision was a CIMT. In re Robles-Urrea, 24 I. & N. Dec. 22, 25 (BIA
4 2006).
5 The Ninth Circuit rejected the BIA’s conclusion. The court held that
6 because § 4 required only knowledge of the felony and did not require an intent
7 to defraud, or conceal, or to obstruct justice, the statute encompassed conduct
8 that was not inherently base or vile. Robles-Urrea v. Holder, 678 F.3d 702, 710-12
9 (9th Cir. 2012). The Ninth Circuit reasoned that “[n]othing in the statute
10 prohibiting misprision of a felony references the specific purpose for which the
11 concealment must be undertaken,” let alone a purpose sufficient to qualify
12 misprision as a categorical CIMT. Id. at 710.
2 In 2017, the Fifth Circuit joined the Eleventh Circuit to hold that misprision is categorically a CIMT. Villegas-Sarabia v. Sessions, 874 F.3d 871, 878 (5th Cir. 2017). We respectfully decline to follow the Fifth and Eleventh Circuit’s approach. We believe that neither Itani nor Villegas-Sarabia satisfactorily supports the assertion that specific intent, or intent to defraud, can be read into § 4, especially when Congress did not include such a requirement and has shown elsewhere in the criminal code that it knows how to include such a requirement if it so chooses. The Eleventh Circuit in Itani reasoned only “that misprision of a felony is a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.” 298 F.3d at 1216. We are reluctant to adopt this reasoning because, “any crime, by definition, runs contrary to some duty owed to society” and “[i]f this were the sole benchmark for a crime involving moral turpitude, every crime would involve moral turpitude.” Robles-Urrea v. Holder, 678 F.3d 702, 709 (9th Cir. 2012). We are also unpersuaded by Villegas-Sarabia, where the Fifth Circuit relied almost exclusively on Itani’s reasoning.
4
1 Mendez moved to terminate removal proceedings and for cancellation of
2 removal, arguing that misprision is not a CIMT. Relying on the BIA’s decision in
3 Robles-Urrea, the IJ found Mendez removable as charged. The IJ also pretermitted
4 Mendez’s application for cancellation of removal, concluding that because his
5 2010 misprision conviction constituted a CIMT, it stopped the clock for
6 calculating length of residency and prevented him from establishing the required
7 seven years of continuous residency. In February 2018, the BIA issued a
8 precedential decision in this case. Matter of Mendez, 27 I. & N. Dec. at 219. It
9 reaffirmed its holding that misprision is a CIMT and declined to follow the Ninth
10 Circuit’s rejection of its reasoning in Robles-Urrea.
11 Mendez petitions for review. We have jurisdiction under 8 U.S.C. § 1252
12 (a)(2)(D). Mendez argues that a conviction for misprision is not a CIMT because
13 it does not categorically involve conduct that is inherently base, vile, or
14 depraved. He also argues that, contrary to the BIA’s contention, its decision is
15 not entitled to Chevron deference. We agree on both points.
16 DISCUSSION
17 The dispositive issue is whether misprision is a CIMT. Because the BIA has
18 no particular expertise in construing federal criminal statutes (as opposed to the
19 INA), we owe no deference to its construction of § 4. United States v. Apel, 571 5
1 U.S. 359, 369 (2014); Mendez v. Mukasey 547 F.3d 345, 346 (2d Cir. 2008).
2 Accordingly, we review de novo the BIA’s conclusion that Mendez’s conviction
3 under § 4 is a conviction for a CIMT. Rodriguez, 451 F.3d at 63.
. . . .
*******************************
There is a “Circuit split:” The 5th & 11th Circuits agree with the BIA’s decision in Matter of Mendez; the 9th and 2d Circuits reject it. That means it’s likiely to eventually be up to the Supremes to decide who’s right.
The Trump administration argued in an executive branch court on Tuesday that the duties of immigration judges housed within the Justice Department have grown more important in the last two decades, elevating the judges to management and therefore rendering them ineligible to form a union.
The Justice lawyers and their first witness—James McHenry, the director of the Executive Office of Immigration Review, which employs the nation’s 400 immigration judges—faced pointed questions from an attorney with the Federal Labor Relations Authority who oversaw the hearing and questioned whether the judges actually set department policy. The administration first announced in August it would attempt to decertify the National Association of Immigration Judges, bringing the case to FLRA to argue the employees are not eligible to collectively bargain.
Union representatives argued at Tuesday’s hearing that their members’ duties have not fundamentally changed since 2000, when the Justice Department last attempted to decertify the union. FLRA rejected the Justice Department’s argument that year that immigration judges make policy through the issuance of decisions, noting the judges do not set precedent and their rulings are often appealed and reviewed. FLRA also said the immigration court system was established specifically so judges do not maintain any management duties to enable them to focus on hearings.
The arguments followed a similar path on Tuesday, though Justice attorneys and McHenry said several changes to Executive Office of Immigration Review policy and relevant precedents created an opening for a new FLRA ruling. William Krisner, the regional attorney for FLRA’s Washington office who presided over the hearing, said Tuesday morning the authority would first have to determine if anything had changed since 2000 before ruling on the merits of the case. William Brill, a Justice attorney, pointed to a 1999 streamlining effort by the department that enabled the immigration appeals board within the review office to simply affirm a judge’s ruling without issuing a separate opinion as one such change. The change was not presented during the previous FLRA case, Brill said, and was amplified in 2002 when EOIR again shifted course to allow just one board member to affirm a judge’s ruling.
Facing Brill’s questioning, McHenry said the “factual day-to-day” of immigration judges’ work has not changed since 2000 but the “legal significance of those duties” had been overhauled.
Legal changes have “fundamentally recast the nature and importance of immigration judge duties,” McHenry said.
Richard Bialczak, an attorney for the union, rejected the argument, saying Justice’s claims were nothing more than a retread.
The Trump administration is “raising the same arguments and hoping for a different outcome,” Bialczak said. “There’s no factual basis for it. The Department of Justice simply does not want to deal with a vocalunion that asserts its rights.”
Brill also argued immigration judges’ workload increasingly involves issuing decisions that cannot be appealed to the Executive Office of Immigration Review’s board. While immigrants can appeal those cases to the federal circuit, Brill and McHenry said the judge’s initial ruling represents the department’s official position. Immigration judges collectively issued about 280,000 decisions in fiscal 2019, about 38% of which could not be appealed to the Board of Immigration Appeals.
Justice also pointed to Lucia v. SEC—a 2018 Supreme Court case that dictated that administrative law judges must be appointed by the president or a designated official, rather than hired normally—as relevant to immigration judges. The Executive Office of Immigration Review employees are administrative judges, not administrative law judges, but McHenry said their “duties and functions are very similar.”
“It’s difficult to conceive someone who needs to be appointed by the head of an agency but does not make management decisions,” Brill said.
Margaret Tough, another attorney for the union, countered that Lucia had no bearing on immigration judges, who are appointed by the attorney general and have been dating back prior to 2000. She and Bialczak said the judges are now under stricter oversight by management, facing new performance evaluations, quotas for their annual caseload and a restriction on speaking publicly. On cross examination, McHenry noted the judges can face discipline if their rulings are not up to acceptable standards and the board can remand cases back to them. Under their performance standards, judges cannot exceed a pre-set remand rate.
Upon follow-up questioning from Kirsner, the FLRA attorney, McHenry conceded the judges “are not supervisors.”
“Immigration judges are at the bottom of the org chart so they don’t supervise anything,” McHenry said, noting they cannot hire or fire anyone.
Tough highlighted that the Executive Office of Immigration Review has hired additional supervisory judges and under McHenry created the Office of Policy, which the agency director said was launched to “ensure better coordination of policy making within the agency.” He added, however, that adjudicatory policy making remained the sole power of immigration judges and their supervisors cannot influence the judges’ rulings.
Kirsner repeatedly sought more information on immigration judges’ power to set precedent. Generally speaking, their rulings do not influence more than the case at hand. Kirsner also clarified that unless there is a remand, their work on a case is finished after they issue a decision. Justice attorneys noted various statements in which the union suggested immigration judges should be removed from the executive branch and placed into an independent court, but Kirsner rejected them as irrelevant.
FLRA is expected to continue to hear from witnesses through Thursday before issuing a decision on the union’s fate later this year.
*************************
Many thanks to my long-time friend, fellow retired judicial colleague, member of the Round Table, and former NAIJ President Judge Joan Churchill for passing this along.
“Immigration judges are at the bottom of the org chart so they don’t supervise anything,” McHenry said, noting they cannot hire or fire anyone.
FLRA also said the immigration court system was established specifically so judges do not maintain any management duties to enable them to focus on hearings.
The above quotes “say it all” about the absurd position being argued by the DOJ. But, since neither administrative nor Article III courts hold the regime accountable for dishonesty before tribunals and engaging in frivolous litigation, like private parties would be, there is no incentive for the regime and its toadies at DOJ to stop flooding the courts with lies, misrepresentations, and meritless litigation.
Indeed, the Article IIIs unwillingness to deal “head-on” with the clearly unconstitutional nature of the Immigration Courts and their grotesque and unethical mismanagement by the DOJ have lead to an absurd growing backlog of 1.3 million cases (each involving real human lives) and the impending collapse of one of the largest sectors of the American justice system. What will it take for the “life-tenured ones in their ivory towers” to get out of the clouds and engage in the fray before it’s too late for our nation?
As I say over and over: Imagine if we had an honest Administration and Article III courts with integrity that forced the Government and private parties to work together to solve pressing legal and policy problems, particularly in the field of immigration, rather than squandering time and resources on Government-generated meritless litigation and schemes intended to collapse our entire justice system?
Worse yet, Article III Courts like the Supremes and the Fifth Circuit regularly reward the regime for its scofflaw performances, thus showing contempt for their own judicial roles, our Constitution, the rule of law, and, worst of all, for the human lives destroyed by invidiously motivated and illegal policies of the Trump regime. It also encourages this scofflaw behavior to continue and escalate.
That’s why the feeble and feckless complaints by Chief Justice Roberts about loss of respect for the courts and the ugly tenor of public discourse encouraged and engendered by the Trump regime are so discouraging and annoying. Actions speak louder than words, Chiefie! And, Trump has figured out that you’re all bluster and no backbone when it comes to standing up and speaking out in real cases about his all-out assault on American democracy!
Finally, let’s not forget that while DOJ/EOIR “management” is squandering everyone’s time on wasteful and frivolous efforts like “decertification,” here are just a few of the real management problems facing the Immigration Court system:
No e-filing system;
Growing 1.3 million case backlog, notwithstanding almost doubling the number of Immigration Judges, with no coherent plan for addressing it effectively for the foreseeable future;
Inaccurate and deficient record keeping as documented by TRAC;
Defective hearing notices;
Rock bottom judicial and staff morale, resulting in premature departure of some of the “best and brightest;”
“Single source” judicial selection process that effectively excludes non-Governmental candidates from the Immigration Judiciary;
Huge discrepancies among judges in asylum decision-making;
Continuing quality control problems with both Immigration Judges and BIA Judges misapplying basic legal standards and established precedents, as noted by Circuit Court decisions;
Problems in providing qualified in-person interpreters for hearings;
Inadequate training of Immigration Judges.
Seems like we’d all be better off if the NAIJ, rather than what passes for “EOIR management” were in charge of our Immigration Courts. And, while the FLA’s Krisner quite properly ruled it irrelevant to the proceedings before him, it’s more obvious than ever that the myriad of problems plaguing the Immigration Courts can’t and won’t be solved until there is an independent, Article I U.S. Immigration court established outside the Executive Branch!
Mexico’s Capitulation to Trump Has Put Thousands of Lives in Danger
The Mexican foreign minister says his government has nothing to be ashamed of. He’s wrong.
September 20 2019 4:51 PM
In recent months, at least 3,000 immigrants have been sent back to towns along the Mexican border between Tamaulipas and Texas, one of the country’s most dangerous areas. What they have faced there defies the imagination. The city of Nuevo Laredo is a well-known hotbed of extortion and kidnapping. Immigrants make easy targets. “These people have been thrown into the lion’s den,” local journalist Daniel Rosas told me recently.
According to Rosas, President Donald Trump’s “Remain in Mexico” program has been particularly harmful, placing thousands of immigrants in imminent danger. “If even us locals are going through a very difficult time dealing with violence here, just imagine what life is like for an immigrant who doesn’t have a home and doesn’t know anyone. This place is completely unsafe,” Rosas told me. In the city of Nuevo Laredo, Rosas described a Dantean scene in which people working for cartels are tasked with identifying and abducting immigrants, who are then taken away to safehouses where they are held for ransom.
“In Tamaulipas, migrants are the most vulnerable. They suffer every kind of abuse imaginable,” he told me. Rosas seemed particularly worried for women and children in Tamaulipas. “They are completely defenseless,” Rosas told me. “When they were waiting and trying to rest under the bridge, there were kids sleeping on cardboard, without any help. They live through sheer horror,” he said.
This nightmare is the predictable result of recent actions by governments on both sides of the border. Three months ago, faced with Trump’s tariff blackmail, Mexico’s government capitulated and agreed to a series of unprecedented measures to reduce the flow of Central American immigrants reaching the United States. Terrified by the possibility of a trade war, President Andres Manuel López Obrador’s administration deployed thousands of troops along Mexico’s southern border, gave control of the country’s immigration authority to an expert in incarceration and enforcement, and pledged full cooperation with some of Trump’s more controversial immigration policies. As part of the deal, Mexican government officials agreed to return to Washington every few months with evidence of results, a recurrent humiliating pilgrimage in search of Trump’s approval and a renewed deferral of the looming tariff threat.
Ten days ago, after his first assessment in Washington with Trump’s inner circle—and, briefly, the president himself—Mexican Foreign Minister Marcelo Ebrard gave a victorious but ultimately unfortunate news conference. Ebrard claimedthat the much-touted downward trend in the number of immigrants reaching the United States would likely be “permanent,” although historical trends suggest the flow of immigrants will likely increase during the fall. Ebrard then said the Mexican government had demanded new and strict gun control measures in the United States. The goal, Ebrard boasted, was to “freeze” gun trafficking along the border. This is disingenuous. Ebrard knows any sort of significant reduction in gun smuggling from the United States would require legislative measures that the Trump administration and the Republican Party will not pursue.
Ebrard then concluded by saying the López Obrador administration had nothing to apologize for on immigration. “We do not regret anything of what’s been implemented,” Ebrard said. “We haven’t done anything we should be ashamed of.”
He is wrong.
The Mexican government’s cooperation with Donald Trump’s punitive immigration strategy has created a calamity along the country’s northern border. Of the many complications, none is more potentially catastrophic than the broad implementation of Trump’s Migrant Protection Protocols program, better known as the “Remain in Mexico” policy. The measure forces potential refugees to wait for months (or years) in Mexico for a slim chance at asylum in the United States. It has opened the door to the creation of a massive community of rootless and marginalized immigrants living in perilous limbo in some of Mexico’s most dangerous areas. There are now close to 38,000 immigrants waitingin Mexico because of MPP. After meeting with Ebrard, the White House announcedthe program would be expanded “to the fullest extent possible,” dramatically increasing the number of potential refugees returned to Mexico, many to regions of the country where they face almost certain peril.
No place seems safe, not even shelters run by religious organizations, one of the few reliable options in other border towns like Tijuana. In Nuevo Laredo, organized crime knows no bounds. Just last month, local pastor Aarón Méndez, who runs the “Casa del Migrante AMAR” shelter in the city, reportedly tried to protect a group of Cuban migrants from a group of abductors. They kidnapped Méndezinstead. No one has heard from him since.
Things aren’t much better in Matamoros, across from Brownsville, Texas. In recent years, the city has seen “open warfare” between rival cartels. American attorneyKristin Clarens, who has been traveling to the region over the past few months to assist potential refugees and make sense of the dire situation in the region, told me she has never met an asylum-seeking immigrant who felt safe in Mexico. “To the contrary,” Clarens said, “most of the people I’ve met described routine and regular acts of violence, such as kidnapping, assault, and extortion.” According to Clarens, migrants in Matamoros, like those in Nuevo Laredo, are facing a full-blown humanitarian crisis. “The heat is intense and unrelenting, and they lack access to sanitation, water, shade, food, and basic shelter,” she told me. “People hike down to the river and use the river to clean themselves, wash their clothes, and occasionally drink. Children and adults are sick and covered with bug bites and lesions.”
Like Rosas, Clarens believes “Remain in Mexico” has complicated the already formidable immigration challenge in the region. “The MPP sends people back to Mexico, where many have been repeatedly victimized by organized criminals or other dangerous groups,” Clarens said. “Their access to the legal system in the U.S.—which had already been severely reduced by the Trump administration—is effectively cut off. MPP will force people to remain for a significant period of time in one of the most vulnerable and dangerous living situations they’ve ever imagined experiencing.” Clarens thinks the crisis will likely worsen. “I know that Mexico can be a safe and stable place for many people, but impoverished and incredibly vulnerable Central Americans who are desperate for security and are leaving their countries of origin for the first time are not able to stay safe,” she told me.
If Mexico continues to quietly go along with the radical expansion of the MPP program, the number of immigrants waiting for asylum in the country could reach the hundreds of thousands. With Mexico’s official refugee agency operating on a ridiculous $1.3 million yearly budget, the López Obrador administration is not remotely ready for such an undertaking. The consequences could be severe. If that happens, Ebrard should be asked again if Mexico really has nothing to be ashamed of.
Those who should really be ashamed are the cowardly life-tenured judges of the Supremes, the Ninth Circuit, and the Fifth Circuit who as a group have utterly failed to protect migrants’ statutory, Constitutional, and Human Rights from lawless, invidious, and very intentional abuse by Trump’s White Nationalist regime and his DHS and DOJ sycophants.
Article III Federal Judges are absolutely immune from liability for their wrongdoing and abuses. But, they shouldn’t be immune from shame and the judgment of history for abandoning our system of justice and the most vulnerable it is supposed to protect at their greatest time of need. That’s basically the definition of legal incompetence and moral cowardice.
Immprof list subscribers: This post is from Jodi Goodwin, who is an immigration attorney in Harlingen, TX struggling to provide support to asylum seekers turned back due to the “Remain in Mexico” policy. This description is from a public post on her Facebook page, and she has given permission to share widely. Margaret Taylor
From Jodi:
Long post….please read. Especially if you are an immigration Judge or an ICE attorney.
Two days. 100 degrees. 100% humidity. And a beautiful rainbow to start our second day this weekend in Matamoros with Project MPP Matamoros. We saw about 80 plus principal applicants (that means we didn’t count spouses and children so the real reach is much higher) to help them understand immigration court proceedings and asylum applications.
But not just that….today I met with 5 pregnant or just had their babies in the last week women. One thrown back into Mexico after CBP had taken her to hospital to stop her contractions, one so heavily pregnant she spent 7 days in the hielera only to be sent to Mexico to give birth less than 12 hours after CBP threw her back. Another 13 weeks along dehydrated, sick, living in inhumane conditions on the streets of Mexico that she fainted and then began vomiting. No one from the Mexican authorities came to assist. Myself and some other refugees grabbed some chairs to make a makeshift bed, had her drink rehydration salts and used peppermint oil to bring her back after the fainting spell. More electrolytes, water, and a granola bar I had in my bag. It took about 40 minutes until her pupils returned to normal. Luckily, a Cuban refugee with some EMT training was barking orders for us to try to find the various things he thought could help her all while checking her vitals super old school style with a watch to count her pulse and listening for her breaths as she laid on the makeshift bed. I guess street lawyering means you are also a nurse/EMT. Glad I had the things the Cuban man was barking orders to find.
There are so many stories I can tell. MPP is wrong on a moral level. MPP is wrong legally.
Then there are all the court documents that have fake addresses where CBP puts in an address to a shelter that no one can get in. They are homeless. But the judges buy those fake addresses and use them to deport people. The “tear sheets” which are supposed to instruct refugees how to appear to court are either not given at all or given with wrong information telling them to appear at the bridge at the same time their hearing is supposed to start which ensures they will not make it to their hearing on time. Then there are those thrown back without even giving them their court documents. When they go to the bridge to ask about their paperwork they are told CBP doesnt handle that…..when in fact it is CBP who does! How in the world are refugees supposed to know when and where to go to court when CBP won’t even give them the court documents. And of course I can not fail to mention all the defects in the court charging documents….it goes on and on.
We are better than this. The humanitarian crisis has not gone away it is just south of the border and worse than ever. In 24 years as a lawyer I have never seen so much extreme cruelty. If you are a lawyer and have some time to work remotely on document preparation contact me. If you are a Spanish Speaking Immigration lawyer with asylum law experience, we could use you for 4 days of your life from Friday to Monday.
Jodi is a private immigration attorney, struggling to make a living as she tries to address this humanitarian crisis. Here’s her firm website with a contact form:
Many thanks to my good friend Professor Margaret Taylor of Wake Forest Law for passing along Jodi’s message and request for help.
While I know that Jodi, Margaret, and other members of the “New Due Process Army” are “better than this,” it’s hard to say that about our country right now. After all, these U.S. Government sponsored attacks on the legal system, the rule of law, human rights, and human decency are happening right now, every day, “as we speak.”
Those carrying them out, like Trump, Miller, “Big Mac With Lies,” “Cooch Cooch,” Matt Albence, Bill Barr, and a host of other sleazy characters operate with total arrogance and impunity.
Appellate Judges of the 9th Circuit, 5th Circuit, and the Supremes, whose sworn duty is to uphold the rule of law against such attacks, have instead gone “belly up,” thrown away their moral compasses, and joined the abusers, cowardly hiding in their “Ivory Towers” from having to actually witness the terrors they are inflicting on the most vulnerable, needy, and deserving of our protection. A truly disgusting performance in judicial spinelessness and task avoidance. Don’t know how those “robed dudes” with lifetime sinecures sleep at night!
And, of course, under GOP Senate leadership, Congress, which could and should have acted by veto proof margins to rebuke Trump and restore the rule of law has functionally ceased to exist. The GOP has made human rights abuses and false racially charged narratives about immigrants part of its official party platform.
And the Dems are “running out the clock” on an impeachment debate that most folks have ceased to care about and which everyone and his brother knows is never going to happen. Where is the House-enacted “Immigration Reform Agenda” that could be a blueprint for future change?
“Hot off the wire” from “Our Gang” of Retired Immigration Judges’ Leader Judge Jeffrey Chase:
Good morning, all: The Fifth Circuit has granted oral argument for the week of February 4 in Canterero-Lagos v. Whitaker the appeal of the BIA’s decision Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ). Our group filed an amicus brief in that case (there was a second amicus brief on behalf of legal service providers). Lead counsel emphasized the importance of the amicus briefs in convincing the Circuit court to grant oral argument, which OIL opposed, arguing that the case was not of particular interest and that W-Y-C- did not constitute a change in existing law.
Best, Jeff
*****************************************
Thanks Jeff for passing this along! And special thanks to all of our retired colleagues who make this effort so special and effective and to the amazingly talented and dedicated pro bono advocates who help us be “heard in court.”
Even from our angle, we can see that “great representation makes a difference.” If it makes that much of a difference to retired Immigration Judges trying to be “heard,” just imagine what a difference it makes to those actually appearing in U.S. Immigration Court to literally “plead for their lives!”
That’s why this Administration’s “strategy” of using waiting lists, illegal orders, inhumane detention, family separation, expedited removal, skewed credible fear interviews, and so-called “review before an Immigration Judge” where counsel, even if present, isn’t even allow to speak, to prevent competent representation and fair presentation of claims is such an outrageous abuse of Due Process!
We are still in the early stages of fully exposing the jaw-dropping extent of these abuses to Article III Judges, Congress, and the public! And, we (and our successors and allies in the NDPA) won’t rest until the U.S. Government is finally forced to live up to its cynically abandoned promise of making U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all!”
No wonder that Trump and his White Nationalist cronies are so scared of “gangs like ours!”
Thank you so much for the flattering post about our work with you all in recent months.
On that front, we have two updates for you all.
First, please see attached the as-filed versions of all three briefs filed last week in Cantarero-Lagos v. Sessions, CA5 No. 18-60115 (the petitioner’s brief, our amicus brief, and the nonprofit immigration legal services’ amicus brief). As some of you will see, there were a couple of you whom we could not include as signatories to our brief because we received your joinders too late. Our apologies for not being able to work those of you in by name, but we had a hard filing deadline of 10 p.m. PST on May 23. Rest assured, however, that the helpful comments you gave us along the way are reflected in the brief.
Second, in case some of you were not yet aware, all of our work two months ago in Matumona v. Sessions, CA10 No. 18-09500, paid off. On the government’s concession, the Tenth Circuit last week remanded the case to the BIA. A copy of the remand order also is attached.
It’s been a pleasure and an honor to work with you guys so much over the last two months.
The pleasure is all ours, J.C.! Thanks for everything that you and Katelyn Rowe have done for us and to Sidley Austin for agreeing to undertake this important pro bono project!
Always interesting how folks sometimes give your views more attention after you’re gone.
Sessions is setting a course for disaster in the Article III Courts. If he keeps on interfering with the judicial process and listening to only one side (as he has done all his life), DHS & DOJ are likely to get themselves so tied up in litigation that nobody will be deported as the Immigration Court system disintegrates and the Article IIIs move in to clean up the mess.
My current Immigration Law & Policy students at Georgetown Law seemed surprised to learn that there is a so-called “court system” in America where the Chief Prosecutor appoints the judges, sets the rules, and can change the result of any decision that he doesn’t like. Sure sounds like something out of a Kafka novel or the Country Report on a Third World dictatorship.
