Tag: Adverse Circuit Decisions

THE GIBSON REPORT — 09-19-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — LITIGATION: Avalanche Of Circuit Reversals Hits Garland’s “Star Chambers!”

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

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Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • ◦NEWS
  • ◦LITIGATION & AGENCY UPDATES
  • ◦RESOURCES
  • ◦EVENTS

 

NEWS

 

Mexico Officials Abused 47% of Migrants Awaiting US Asylum

Bloomberg: Nearly half of US-asylum seekers returned to Mexico under the “remain-in-Mexico” program to await a US immigration court hearing said they’d been abused by local officials, according to a Human Rights First report released Thursday. See also Biden urges Mexico to take migrants under COVID expulsion order he promised to end.

 

FY 2022 Seeing Rapid Increase in Immigration Court Completions

TRAC: Immigration Court case completions have been rapidly increasing. During the first eleven months of FY 2022. Immigration Judges have closed over 375,000 cases — a historical record. If the pace continues, closures should top more than 400,000 by the end of the fiscal year. This is nearly three times as many case closures as last year. It is also roughly 50 percent higher than the previous high in FY 2019 during the Trump administration.

 

Migrant Crisis Puts N.Y. ‘Right to Shelter’ Law to the Test

NYT: Mr. McGuire cited the city’s failure on Monday to offer beds to 60 migrants who arrived at the men’s intake facility on East 30th Street in Manhattan, where homeless men are assessed when they first enter the shelter system — the first major such lapse in over a decade.

 

Thousands of Migrants Are Arriving in El Paso. They Have Nowhere to Sleep.

Vice: Since the beginning of September, over 1,100 migrants have been arriving every day in El Paso, more than 90 percent of them from Venezuela, according to the city’s CBP authorities. The influx has completely overwhelmed the city’s immigration shelters, and since most have no U.S. sponsor—support to get a visa to stay lawfully in the U.S.—immigration authorities have to release nearly 500 migrants a day into the streets of El Paso. And about 1,000 stay there to sleep every night.

 

Migrants Flown to Martha’s Vineyard Say They Were Misled

NYT: A fleet of buses arrived at St. Andrew’s Episcopal Church in Edgartown on Friday morning to ferry about 50 migrants — many of them dazed and a bit confused, but happy to be in the United States at last — to Joint Base Cape Cod, a temporary shelter. See also Texas sends another busload of migrants to Kamala Harris’s home; POLITICO Playbook: Breaking down DeSantis’ migrant stunt; DeSantis Flying Migrants to Martha’s Vineyard Is Part of a 60-Year-Old Segregationist Playbook.

 

The majority of Americans think migrants are ‘invading’ the U.S. Meanwhile, suffering at the border continues.

America: A majority of Americans—52 percent—now believe the nation is experiencing an “invasion” on the southern border, and 49 percent say that migrants are responsible for an uptick in U.S. drug overdoses because they are transporting fentanyl and other drugs.

 

Immigrants Keep Getting Lied To By Human Smugglers On Platforms Like Facebook, WhatsApp, and TikTok

BuzzFeed: The Tech Transparency Project found that human smugglers advertise their services on Facebook Marketplace and in local buy-sell groups, with third-party ads for bona fide businesses embedded within the posts that allow Facebook to make money every time a potential immigrant looks for smuggling services on the platform. Some of the listings even featured an ad for a scholarship run by Meta.

 

‘Never sleeps, never even blinks’: the hi-tech Anduril towers spreading along the US border

Guardian: Funded by Trump supporter Peter Thiel, the autonomous surveillance towers can detect a human from 2.8km away.

 

LITIGATION & AGENCY UPDATES

 

EOIR Final Rule on Limited Representation of Pro Se Individuals

AILA: EOIR final rule on limited representation of pro se individuals, which permits practitioners to provide document assistance to pro se individuals by entering a limited appearance through new Forms EOIR-60 or EOIR-61. The rule is effective 11/14/22.

 

CA2 on Evidence: Santiaguez v. Garland

LexisNexis: In denying his petition for CAT relief, the agency acknowledged that Santiaguez is an indigenous gay man and LGBT activist and that there is widespread violence against members of the LGBT community throughout Mexico. Nonetheless, the agency concluded that Santiaguez failed to satisfy his burden for CAT relief because he did not establish a likelihood that Mexican authorities would either torture him directly or acquiesce to his torture by private actors. In reaching this conclusion, the agency erred in several respects.

 

2nd Circ. Says Mexican Father Was Wrongly Denied Witnesses

Law360: The Second Circuit on Thursday revived a Mexico native’s bid to cancel his deportation on grounds that his children would experience extreme hardship without him, saying he should have been allowed live witness testimony to support his case.

 

3rd Circ. Finds Judge Stymied Asylum Seeker’s Right To Atty

Law360: The Third Circuit on Thursday in a precedential opinion resurrected a Dominican man’s request for asylum, finding that the lower courts interfered with his right to an attorney by denying a request to reschedule a hearing so that the lawyer he retained just 24 hours before would be better prepared.

 

CA4 On Corroboration: Garcia Rogel V. Garland

LexisNexis: One of those circumstances requiring review by a three member panel is when the IJ’s decision “is not in conformity with the law or with applicable precedents.” 8 C.F.R. § 1003.1(e)(6)(iii). Petitioner’s appeal of the IJ’s decision therefore should have been adjudicated by a three member panel of the BIA. … In conclusion, we grant the petition for review so that the IJ may reconsider the police report in light of In re Arreguin de Rodriguez, 21 I. & N. Dec. 38 (B.I.A. 1995).

 

6th Circ. Says BIA Ruling Has Its Hands Tied In Asylum Case

Law360: A split Sixth Circuit appellate panel has denied the asylum bid of a Salvadoran couple fleeing the gang MS-13, saying the U.S. Board of Immigration Appeals did not err when it found the couple had not shown the Salvadoran authorities were incapable of protecting them from the gang.

 

Split 9th Circ. Revives Indian Man’s Asylum Bid

Law360: The Board of Immigration Appeals did not go through with an analysis that would have shown an Indian man was persecuted for his political affiliation, a split Ninth Circuit panel ruled Wednesday in reviving the man’s asylum bid.

 

9th Circuit Revives Mexican Man’s Bid To Avoid Deportation

Law360: The Ninth Circuit on Friday held that a Mexican man who was tortured and harassed in his home country should get another shot at avoiding deportation, ruling that the Board of Immigration Appeals erred in how it went about overturning an immigration judge’s decision in the man’s favor.

 

CA9 on Standard of Review: Chavez-Escamilla v. Garland

LexisNexis: The BIA failed to correctly apply the clearly erroneous standard. While the BIA indicated disagreement with the IJ’s findings, it did not explain why the IJ’s decision was illogical, implausible, or without support. … Clear error review requires the BIA to “explain how these alleged errors showed lack of logic, plausibility, or support in the record on the part of the IJ.”

 

11th Circ. Says Private Dispute Doesn’t Support Asylum Bid

Law360: The Eleventh Circuit on Tuesday denied a petition from a Honduran man seeking asylum over claims that narcotics traffickers targeted his family, saying the dispute with the traffickers stemmed from a private “vendetta,” making him ineligible for asylum to avoid persecution.

 

Notice of Potential Class Membership, Al Otro Lado v. Mayorkas (PDF, 212.97 KB)

USCIS: This notice is intended to provide information for individuals who (1) may be an AOL PI Class Member; (2) had the “third-country transit rule” applied to their immigration case; (3) were ordered removed from the U.S. under an “expedited removal order”; and (4) currently reside in the United States.

 

Notice Of Appeal From A Decision Of An Immigration Judge – Comments Requested

EOIR: As part of EOIR’s “Access EOIR” initiative, the agency is seeking to revise its Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge, to include a section for unrepresented respondents to consent to have their case be considered for inclusion in the BIA Pro Bono Project.

 

USCIS 30-Day Notice and Request for Comments on New Version of e-Request Tool

AILA: USCIS 30-day notice and request for comments on a new version of USCIS’s e-Request Tool. Comments are due 10/17/22. (87 FR 56968, 9/16/22)

 

RESOURCES

 

 

EVENTS

 

 

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Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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Avalanche
Merrick Garland ignores the existential threat from the avalanche of dangerous and defective decisions by his Trump holdover BIA. But, the rest of us see exactly what’s happening.
PHOTO: Creative Commons

I count no fewer than seven Circuit rejections of wrong-headed BIA decisions in Elizabeth’s report this week. The legal incompetence of EOIR under Garland is astounding! 

Disturbingly, several reversals involve outrageous denials of routine continuances. Garland runs a system where cases languish for years, sometimes decades, because of poor judicial decisions and inept docket management by EOIR. Yet, some IJ’s and the BIA are “programmed” to deny well-justified continuances in clear violation of Due Process. What a disgrace!

Garland has failed miserably to bring enough well-qualified judges and competent administrators into his dysfunctional Immigration Courts. Yet, he wanders around America giving clueless speeches about the wonders of the American justice system and the greatness of immigrants!

Meanwhile, a nationwide rebellion among practitioners is brewing against Garland’s latest round of mindless, due-process-denying “Aimless Docket Reshuffling.” It’s going to take more than a few cosmetic “regional stakeholder meetings” to get things back on track at EOIR. Everyone except Garland and his lieutenants knows that!

And, the continuing meltdown at EOIR helps “fuel” disgraceful stunts by nativist racists like DeSantis and Abbott.

🇺🇸 DUE PROCESS FOREVER!

PWS

09-18-22

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