Tag: Allison Heimes

Dan Kowalski reports from LexisNexis Immigration Community:

8th Cir. Says BIA Blew “Probable Cause” Analysis in “Interpol Red Notice” Case:  

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca8-on-serious-reasons-for-believing—barahona-v-wilkinson

CA8 on “Serious Reasons for Believing” – Barahona v. Wilkinson

Barahona v. Wilkinson

“Willian Rubio Barahona petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States. We hold that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2). Because no such finding was made below, we reverse and remand for further proceedings.”

[Hats off to Allison Heimes]

2nd Says BIA Played “Hide The Ball” On NY Legal Assistance Group’s FOIA Request: 

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/major-foia-victory-at-ca2-nylag-v-bia

Major FOIA Victory at CA2: NYLAG v. BIA

NYLAG v. BIA

“Plaintiff-Appellant New York Legal Assistance Group (“NYLAG”) seeks access to non-precedential “unpublished opinions” issued by Defendant-Appellee the Board of Immigration Appeals (“BIA”) in immigration cases. NYLAG wants to consult the opinions, which are not routinely made available to the public, to aid in its representation of low-income clients in removal and asylum proceedings. NYLAG asserts that the BIA’s failure to make the opinions publicly available violates the agency’s affirmative obligation under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(2), to “make available for public inspection in an electronic format final opinions . . . [and] orders, made in the adjudication of cases.” In this action under FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), which authorizes district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,” NYLAG seeks an order requiring the BIA to make available to the public all unpublished opinions issued since November 1, 1996, as well as future unpublished opinions. The United States District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed the case, concluding that FOIA’s remedial provision does not authorize district courts to order agencies to make records publicly available. We conclude that FOIA’s remedial provision authorizes the relief NYLAG seeks. FOIA’s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents publicly available. We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.”

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Why would the BIA even want to withhold unpublished decisions or bar someone from asylum based on less than probable cause? Why would anyone want to further impede the already difficult task of representing the most vulnerable in Immigration Court? What if the resources wasted on litigation to diminish due process were “repurposed” to working with NYLAG and other pro bono all-stars to achieve universal representation? Much of what EOIR does these days makes little or no sense unless looked at from a White Nationalist nativist perspective.

When will it end? The Biden Administration proclaimed a “new day” on immigration and human rights issues. But, you sure can’t tell from the junk continuing to come out of the BIA and being defended in court by OIL. No matter how welcome the change in tone from the President is, it requires concerted action and getting better judges, administrators, and litigators in place to actually change policies, produce fairer results, and save lives!

Congrats to Allison Heimes and the good folks at Fair Trials Americas.

Also, congrats to my former Georgetown Law superstar, Arlington Intern, & NY JLC, Elizabeth Gibson (“The Gibson Report”) and her colleagues at the NY Legal Assistance Group!

🇺🇸🗽⚖️Due Process Forever! We need “a little less talk and a lot more action!”

PWS

02-07-21