Amicus Brief – Page 2 – immigrationcourtside.com

HON. JEFFREY CHASE: In-Depth Analysis Of “Our Gang’s” Amicus Brief In Matter of W-Y-C- & H-O-B-

https://www.jeffreyschase.com/blog/2018/5/28/amicus-brief-filed-in-w-y-c-h-o-b-appeal

May 28 Amicus Brief Filed in W-Y-C- & H-O-B- Appeal

On May 23, an amicus brief was filed in the U.S. Court of Appeals for the Fifth Circuit on behalf of a group of 13 former immigration judges (including myself) and BIA members in the appeal of the BIA’s precedent decision in Matter of W-Y-C- & H-O-B-. In that decision, a three-judge panel of the BIA held that an asylum applicant must clearly delineate its proposed particular social group before the immigration judge. The Board held that the asylum applicant may not alter the social group formulation on appeal to the BIA, citing the “inherently factual nature of the social group analysis.”

Our brief argues that the Board’s reasoning is flawed. The Board has held that the determination of whether a particular social group is cognizable is a question of law which the Board may review de novo. Our brief also points out that the Board’s arguments as to why it will generally not consider a new group on appeal overlooks the fact that it has done just that in the past.

One member of our group, former BIA chairperson Paul W. Schmidt, was the author if the Board’s 1996 landmark decision in Matter of Kasinga, the first BIA precedent to grant a gender-based asylum claim. Two other members of our group, former Board Members Gus Villageliu, and Lory D. Rosenberg, respectively joined in the majority opinion and wrote a concurring opinion in Kasinga. As the three pointed out in the drafting process, the particular social group that the Board approved in that case was neither delineated before the IJ nor proposed by either party on appeal. It was crafted for the first time by the Board itself, in a manner that was consistent with the factual record below and which allowed the Board to grant relief. The three noted that the ability of the Board itself to alter the group’s contours is often necessary to allow an en banc Board to reach consensus.

Our brief also pointed to the Board’s decision in Matter of M-E-V-G- to remand the record where “the respondent’s proposed particular social group has evolved during the pendency of his appeal.” We also point out how circuit courts have frequently cited to the Board’s decades-long practice of clarifying proposed groups.

Our brief additionally underscores the extreme complexity of particular social group formulation, particularly in light of the highly-criticized additional requirements of particularly and social distinction imposed by the Board in recent years. We note that group delineations will often be made by pro se respondents, often with a limited mastery of English, sometimes in detained facilities with limited access to counsel or law libraries.

This was the sixth Amicus brief filed by our group. We are most thankful for the outstanding assistance of attorneys Jean-Claude Andre and Katelyn Rowe of the law firm of Sidley Austin for lending their assistance pro bono for the second time in the drafting of our group’s brief. We also acknowledge the distinguished counsel for the respondents, led by Fatma Marouf of Texas A&M Law School, Geoff Hoffman of the University of Houston Law Center, and Deborah Anker of Harvard Law School.

The link to our full brief is here: http://immigrationcourtside.com/wp-content/uploads/2018/05/Cantarero-Amicus-Brief.pdf

The cooperation and assistance of so many brilliant minds and caring hearts is a source of great comfort in these challenging times.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

WITH HELP FROM GIBSON DUNN, “GANG OF 16” RETIRED US IMMIGRATION JUDGES FILES AMICUS BRIEF OPPOSING AG’S INTERFERENCE IN MATTER OF A-B-

HERE’S THE BRIEF:

AB-Brief Amici Curiae of Sixteen Former Immigration Judges and Members of t…

HERE’S THE “STATEMENT OF INTEREST:”

Amici Curiae are sixteen former immigration judges and members of the Board of Immigration Appeals (“Board”). Out of respect for the law to which they have dedicated their careers, Amici feel compelled to file this brief in support of Respondent. Amici are deeply concerned about the procedural violations in this case—in particular the Attorney General’s certification of a question that was not properly considered by the Immigration Judge and was not considered at all by the Board. This complete disregard for established procedure is alarming. It plainly violates binding federal regulations governing the narrow circumstances under which Attorney General certification is permitted and it raises serious due process concerns.

Ultimately, it is within Congress’s authority—not the Attorney General’s—to define the boundaries of asylum. And Congress has already determined that a person can qualify for asylum based on persecution that independently might constitute private criminal activity.

Amici urge the Office of the Attorney General not to take any further action on a question that is not properly before it, and therefore urge that the referral order be vacated.

HERE’S THE TOC:

TABLE OF CONTENTS

Page INTRODUCTION ………………………………………………………………………………………………………….. 1 STATEMENT OF INTEREST OF AMICI CURIAE………………………………………………………….. 1 BACKGROUND ……………………………………………………………………………………………………………. 6 ARGUMENT …………………………………………………………………………………………………………………. 8

This case is not properly before the Attorney General ……………………………………. 8

Federal regulations require that the Immigration Judge issue a
decision on asylum before certifying a case to the Board. ……………………. 9

The Attorney General may only review a Board decision, but there
was none………………………………………………………………………………………. 12

Bypassing the Board nullifies critical procedural safeguards…………………………. 13

The Board, a neutral and independent body, with deep knowledge
of its own precedent, should consider the effect of new case law on
that precedent in the first instance. ………………………………………………….. 13

Bypassing the Board raises serious due process concerns…………………… 14

The Attorney General cannot override Congress’s judgment under the
guise of a procedural mechanism……………………………………………………………….. 16

“Persecution” can be carried out or threatened by private actors that the government cannot or will not control………………………………………………………… 19

CONCLUSION…………………………………………………………………………………………………………….. 21

HERE’S THE “GANG OF 16”

 The Honorable Steven Abrams served as an Immigration Judge at the New York, VarickStreet, and Queens Wackenhut Immigration Courts in New York City. Prior to his appointment to the bench, he worked as a Special U.S. Attorney in the Eastern District of New York, and before that as District Counsel, Special Counsel for criminal litigation, and general attorney for the former Immigration and Naturalization Service (“INS”).

 The Honorable Sarah M. Burr served as an Immigration Judge in New York starting in 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full time until her retirement in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit.

 The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He now works in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. He received the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

 The Honorable George T. Chew served as an Immigration Judge in New York from 1995 to 2017. Previously, he served as a trial attorney at the former INS.

2

 The Honorable Bruce J. Einhorn served as an Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law, and is a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford.

 The Honorable Cecelia M. Espenoza served as a Member of the Board from 2000 to 2003 and in the Executive Office for Immigration Review (“EOIR”) Office of the General Counsel from 2003 to 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer, and Senior FOIA Counsel. She now works in private practice as an independent consultant on immigration law. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997–2000) and the University of Denver College of Law (1990–97), where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on immigration law. She received the Outstanding Service Award from the Colorado Chapter of AILA in 1997.

 The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and as an attorney advisor to the Board from 2013 until her retirement in 2016. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

 The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013. He is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. From 1975 to 1982, he served in various positions with the former INS, including as a general attorney, naturalization attorney, trial attorney, and deputy assistant

3

commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration-court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor at the University of Maryland School of Law, also teaching immigration law. He is also a past board member of the Immigration Law Section of the Federal Bar Association.

 The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of the Board for six months between 2010 and 2011. She previously worked in private practice for ten years, focusing on immigration law. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King currently works as an advisor on removal proceedings.

 The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench this January after twenty-seven years. Before her time on the bench, she worked in several roles, including as a consultant to various nonprofit organizations on immigration matters (including Catholic Charities and Volunteers of Legal Services) and as a staff attorney for the Legal Aid Society, Immigration Unit, in New York.

 The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to

4

2004. She is the founder of IDEAS Consulting and Coaching, LLC, a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

 The Honorable Susan Roy started her legal career as a Staff Attorney at the Board, a position she received through the Attorney General Honors Program. She served as an Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. She has been in private practice for nearly five years, and two years ago, opened her own immigration law firm. She is the New Jersey AILA Chapter Liaison to EOIR and is the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association.

 The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, VA. He previously served as Chairman of the Board from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1979 to 1981 and 1986 to 1987. He was the managing partner of the Washington, DC office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, DC office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also consults, speaks, writes, and lectures at various forums throughout the country on immigration law topics.

5

 The Honorable William Van Wyke served as an Immigration Judge from 1995 until 2015 in New York City and York, PA.

 The Honorable Gustavo D. Villageliu served as a Member of the Board from July 1995 to April 2003. He then served as Senior Associate General Counsel for the EOIR until he retired in 2011. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

 The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details to the Tacoma, Port Isabel (TX), Boise, Houston, Atlanta, Philadelphia, and Orlando immigration courts. Previously, she practiced immigration law from 1980 to 1995 in her own firm in San Jose, California. She served as National President of AILA from 1989 to 1990 and was a national AILA officer from 1985 to 1991. She also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in the immigration law field.

HERE ARE THE ATTORNEYS AT GIBSON DUNN WHO MADE THIS HAPPEN:

Amer S. Ahmed

Ronald Kirk

Megan B. Kiernan

Lalitha D. Madduri

Chelsea G. Glover

Counsel for Amici Curiae

*************************************

Thanks to all for making this happen. Great teamwork in the name of Due Process!

Special thanks to our colleague Judge Lory Diana Rosenberg who served as our “Group Leader” in working with Gibson Dunn and to Judge Jeffrey Chase for assembling the group and putting the “finishing touches” on the filing.

PWS

04-27-18

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

https://www.jeffreyschase.com/blog/2018/3/21/amicus-brief-filed-in-cjlg-v-sessions

Mar 21 Amicus Brief Filed in C.J.L.G. v. Sessions

On March 15, lawyers with the firm of Simpson, Thacher & Bartlett filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit on behalf of 11 former immigration judges and BIA Board members in the case of C.J.L.G. v. Sessions. The case involves a child from Honduras who appeared in immigration court accompanied only by his mother. As the respondent could not obtain a lawyer in the time afforded, the immigration judge went forward with the hearing, informing the mother that she would “represent” her son.

The respondent is an asylum applicant whose gang-related claim rested on his ability to precisely delineate a particular social group pursuant to requirements complex enough to stump most attorneys. As his mother lacked any legal training, his hearing did not go well. On appeal, the BIA affirmed the IJ’s denial of the claim. In its decision, the BIA determined that the respondent did not suffer past persecution when at the age of 13, members of MS-13, a brutal, multinational gang, threatened to kill him, his mother, and his aunt if he refused to join their ranks, put a gun to his head to emphasize their point, and told him that he had one day to decide. The BIA also found the hearing before the IJ to have been fair, and that the respondent was not denied due process because the immigration laws do not require the appointment of counsel in removal proceedings.

Hon. Dana Marks, an outstanding jurist and president emeritus of the National Association of Immigration Judges, often states that immigration judges hear “death penalty cases under traffic court conditions.” What she means by this is that a genuine asylum seeker who is denied relief and deported faces the risk of death in the country from which he or she fled. Yet the conditions under which such life-or-death claims are heard are inadequate; the limited time and resources afforded to the judges hearing such claims are better suited for a court hearing much lower stakes matters such as traffic tickets. Courts hearing cases involving matters of life and liberty have a higher obligation to afford due process. First and foremost, a defendant facing criminal charges in a state or federal court is entitled to assigned counsel. However, although the stakes may be higher in an asylum case, respondents in immigration court have no such entitlement. Although the respondent in C.J.L.G. may face death if deported, having a judge determine it was fine to proceed, and telling his mother that she would represent him sounds like something that might be appropriate in traffic court.

A three-judge panel of the Ninth Circuit denied the respondent’s petition for review. Interestingly, the respondent was found credible in his recounting of the death threats he suffered and as to his fear of return; the court accepted the statistics provided by respondent’s counsel that unrepresented respondents succeed on their claims only 10 percent of the time, whereas as represented minors enjoy a 47 percent success rate. The court also assumed that the respondent qualifies as an indigent (due to his mother’s inability to afford private counsel), and that ordering him removed would send him “back to a hostile environment where he has faced death threats in the past implicates his freedom.” The court further acknowledged that the immigration laws and regulations include assuring minors “the right to a ‘full and fair hearing,’ which includes the ‘opportunity to present evidence and testimony on one’s behalf,’ cross-examine witnesses, and examine and object to adverse evidence.” It would be difficult to argue that an unrepresented minor is capable of exercising such rights.

In spite of this, the court denied the petition, determining that there was no Constitutional right to assigned counsel at government expense to minors in removal proceedings. The court further found that the respondent had not demonstrated prejudice, as he had not established a nexus to a protected ground as required to establish eligibility.

The ACLU has filed a petition for the Ninth Circuit to rehear the case en banc. It is in support of this latest petition that the latest amicus brief was filed. I am one of the former IJs included in the brief; I join my colleagues in being proud to assist in such a noble effort as securing assigned counsel for immigrant children facing the legal complexities and dire consequences of immigration proceedings. In a nutshell, the brief argues that the efforts of an immigration judge to provide a fair hearing is no substitute for counsel. Immigration judges can only do so much faced with “overburdened and growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy.”

The problem is compounded in cases in which the asylum claim is based on membership in a particular social group. The BIA has recently held that an asylum applicant must specifically delineate such group, a requirement that is clearly beyond the ability of a child (or his or her mother) to do. As the brief points out, in this case, the respondent “ and his mother showed no understanding of why a gang-related threat alone would not warrant asylum, but the IJ’s cursory inquiry ended without seeking the motivation for the threat.”

Of course, the entire issue could be resolved by the Department of Justice choosing to do what is right by agreeing to provide assigned counsel at government expense to this most vulnerable group.

Heartfelt thanks to partner Harrison J. “Buzz” Frahn and associate Lee Brand of the law firm of Simpson Thacher & Bartlett for their dedication and effort in drafting the excellent brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE
Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-
fullsizeoutput_40da.jpeg
Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog Archive Contact

*****************************

As pointed out by Jeffrey, this is an incredibly important case for Due Process under our Constitution! Let’s hope that the en banc Ninth gives it a close look.

PWS

03-22-18

DEADLINE HIGH NOON MARCH 9: Sign On To The Human Rights First (HRF) Letter To AG Sessions On Matter Of A-B — See Below!

https://www.google.com/url?q=https://www.google.com/url?q%3Dhttps://docs.google.com/forms/d/e/1FAIpQLSfnVx6eqSzs8Gif0awjd3KHCxPBmX5JRs5IBsEynUnG9Y_96w/viewform?c%253D0%2526w%253D1%26amp;sa%3DD%26amp;ust%3D1520602709094000%26amp;usg%3DAFQjCNF0EJ6FkYWXhkX7jnBTSPNuM7N6DA&sa=D&ust=1520602709100000&usg=AFQjCNEb9Sh_9p0yhsy_EfWOsOepFnAASQ

From: Anwen Hughes <HughesA@humanrightsfirst.org>
Date: March 8, 2018 at 5:25:33 PM EST
To: Dan Kowalski <dkowalski@david-ware.com>, “immprof@lists.ucla.edu” <immprof@lists.ucla.edu>
Subject: [immprof] RE: no transparency on Matter of A-B-

Hello all,

With apologies for cross-posting, we have drafted a sign-on letter on behalf of Human Rights First on the referral process in Matter of A-B-, complaining about the lack of transparency and asking for a copy of the underlying decision.

We are looking for sign-ons from concerned NGO’s and immigration professors. For NGO’s, we are taking organizational sign-ons, for immprofs, individual ones, but asking you to identify your school for purposes of identification only.

You can find a link to the text, and a link to sign onto the letter, below. With many apologies for the tight turnaround, imposed on us by circumstance, we are asking for sign-ons by noon tomorrow, Friday, March 9. There are a couple of formatting quirks due to the transfer of the text to google docs–these will be fixed before the letter is sent.

Letter text

Sign on form

Thanks so much,

Anwen

*******************************

SIGN ON TO THE LETTER BY CLICKING THE LINK AT THE TOP!

PWS

03-09-18

HON. JEFFREY CHASE WITH MORE ANALYSIS OF THE CASTRO-TUM AMICUS BRIEFS!

https://www.jeffreyschase.com/blog/2018/3/4/14-former-ijs-and-bia-members-file-amicus-brief-with-ag

Mar 4 14 Former IJs and BIA Members File Amicus Brief with AG

On February 16, the law firm of Akin Gump Strauss Hauer & Feld LLP filed an amicus curiae (i.e. “friend of the court”) brief on behalf of 14 former immigration judges and BIA board members with Attorney General Jeff Sessions pursuant to his request in Matter of Castro-Tum. In that decision, the Attorney General certified to himself an unpublished decision, in which he requested amicus briefs on the following: (1) whether IJs and the BIA have the authority administratively close cases, and if so, whether the BIA’s precedent decisions “articulate the appropriate standard for administrative closure” (2) If it is determined that IJs lack such authority, should the AG delegate it, or conversely, if the IJs have such authority, should the AG withdraw it; (3) can the purpose of administrative closure be satisfied through other docket management devices; and (4) if the AG determines that IJs and the BIA lack such authority, what should be done with the cases already closed.

As immigration judges and the BIA have exercised their authority to administratively close cases for decades, the AG suddenly raising these questions on his own would seem to signal his intent to do away with this important docket-management tool. As background, the respondent in Castro-Tum is an unrepresented, unaccompanied minor. When he did not appear for a scheduled removal hearing after the immigration court mailed a notice to what it was told was the minor’s address, the DHS attorney requested the immigration judge to order the child removed from the U.S. However, the IJ had questions concerning the reliability of the mailing address that the government provided to the immigration court, and declined to enter the removal order, administratively closing the proceedings instead. The DHS attorney appealed. It should be noted that the appeal did not challenge an immigration judge’s right generally to administratively close cases; the DHS believed that in this particular case, the evidence of record should have required the IJ to enter an order of removal. The BIA agreed with the DHS, and reversed the IJ’s order. It was at that point that the AG inserted himself into the matter by certifying an already-resolved matter to himself and turning it into a challenge to the overall authority to administratively close any case.

Numerous groups filed amicus briefs in this case; they include those that represent unaccompanied children; immigrant rights groups, and academic clinicians. The American Immigration Council (AIC) argued in its brief that AG Sessions’ history of hostility towards noncitizens renders him unfit to decide the issue raised in Castro-Tum. Our group of former IJs and Board members brought a unique perspective to the issue, based on our many years of collective experience managing case dockets and addressing the issues that administrative closure is designed to remedy.

Immigration Judges exist by statute. Therefore, the inherent powers delegated to them (including the power to control their own dockets, and to administratively close cases as a means of exercising such control) come from Congress, and not the Attorney General. As our brief explains, such authority of judges to control their dockets has been recognized by the Supreme Court and lower federal courts. Federal regulations issued by the Department of Justice grant immigration judges the power to “exercise their independent judgment and discretion,” including the ability to “take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition” of the individual cases appearing before them.

Furthermore, the BIA has set out the proper standard for determining whether a case should be administratively closed or required to proceed. In Matter of Avetisyan, the Board laid out the criteria that may properly be considered in determining whether administrative closure is appropriate. In Matter of W-Y-U-, the Board added that the most important consideration is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. The immigration judge is required set forth his or her reasons for administrative closure in a decision which may be reviewed on appeal to both the BIA and the federal circuit courts.

The brief additionally points out the inadequacy of other existing tools. In Avetisyan, the immigration judge granted multiple continuances to allow DHS to adjudicate a visa petition filed on behalf of the respondent. However, the petition could not be adjudicated because USCIS (which adjudicates such petitions) was required to keep returning the file to the ICE prosecutor before it could get to the petition because it was needed for the next immigration court hearing (which was only scheduled to check on the status of the visa petition). The file remained in constant orbit, never remaining with USCIS long enough to allow for adjudication of the petition, which in turn would require another continuance. Furthermore, federal regulation specifically requires that immigration proceedings by administratively closed before USCIS will adjudicate certain waivers of inadmissibility. As noted in the brief, DHS defended such administrative closure requirement when its necessity was questioned by a comment on the proposed regulation.

Our group of amici expresses our sincere gratitude to the outstanding attorneys at Akin Gump who provided their pro bono assistance: partner Steven H. Schulman; Andrew Schwerin, the primary drafter; and Martine Cicconi, Mallory Jones, and Chris Chamberlain, who drafted sections of the brief. We also thank Prof. Deborah Anker of Harvard Law School and the staff and students of the Harvard Immigration and Refugee Clinic for its invaluable support and insights. The amici included in our brief were former BIA Chair and Board Member and former Immigration Judge Paul W. Schmidt; former Board Members Cecelia M. Espenoza, Lory D. Rosenberg, Gustavo D. Villageliu, and former Immigration Judges Sarah M. Burr, Bruce J. Einhorn, Noel Ferris, John F. Gossart, Jr., William P. Joyce, Edward Kandler, Carol King, Susan Roy, Polly A. Webber, and myself.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

ANOTHER AMICUS OPPORTUNITY FOR RETIRED IMMIGRATION JUDGES AND BIA APPELLATE JUDGES – Join My Friend & Colleague Judge Eliza Klein, Pro Bono Counsel Sidley Austin, The Heartland Alliance, & Me In A 10th Circuit Case Involving Access To Counsel In Immigration Detention (There Isn’t Any, For All Practical Purposes)

Judge Klein,

I hope you’re well. Allow me to introduce you to a team of lawyers from the firm Sidley Austin who are working on an amicus brief on behalf of immigration judges in the 10^th Circuit case that I mentioned to you. As we discussed, the case involves an arriving asylum seeker who was detained in a remote facility with no LOP, and with no realistic access to counsel. And, to complicate matters, at the time of his hearing, there was not meaningful phone access to the jail. The goal of the brief will be to address, from a judge’s perspective, the challenges of adjudicating such cases where there’s no real option for counsel and also to hopefully address some of the ways in which IJs have had to work around the absence of counsel to develop an adequate record in such cases.

The team from Sidley will get going on drafting, but in the meantime, I think it would be very helpful if you could work with them to reach out to other IJs who you certainly know better than any of us. We’ve provided Sidley a list of former IJs who have been willing to sign amicus briefs in other contexts, so hopefully that list (and your inside info) will help with the outreach.

Keren Zwick (Pronouns: she/her/ella)

Associate Director of Litigation

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

208 S. LaSalle Street, Suite 1300, Chicago, IL 60604
T: 312.660.1364 | F: 312.660.1505 | E: kzwick@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

***********************************************

If you can help out, please respond directly to the attorney drafting the brief Jean-Claude Andre of Sidley Austin: JCAndre@sidley.com

I recently had the honor and pleasure of working with the Sidley Austin litigators on an Amicus Brief in the 6th Circuit case Hamama v. Homan (Due Process for Chaldean Christians). It was great!

PWS

03-01-18

HERE’S MY AMICUS BRIEF IN PEREIRA V. SESSIONS IN THE U.S. SUPREME COURT – Issue: Proper Notice & The “Stop-Time Rule”

PEREIRAVSESSIIONS,SCT,AMICUS17-459 tsac Former BIA Chairman & Immigration Judge Schmidt

Many thanks to the amazing Eric F. Citron, Partner, and his team at GOLDSTEIN & RUSSELL P.C., Bethesda, MD for making this possible! More members of the New Due Process Army!

Eric is a former Supreme Court Law Clerk. No way I could have done this without him and his great colleagues! It’s very gratifying that the “best and the brightest” in the legal community, like Eric, are coming to the aid of WESCLEY FONSECA PEREIRA and others like him. Too often in the past, part of the Government’s litigation strategy has been to create a “mismatch” between the Solicitor General’s Office and the attorneys representing migrants, who often aren’t Supreme Court “regulars.” Brilliant, committed lawyers like Eric are “leveling the playing field.” Thanks again, Eric, for all that you and your “Terrific Team” do! And, many, many thanks to GOLDSTEIN & RUSSELL P.C. for making it possible for Eric to participate in this critically important case!

PWS

03-01-18

FORMER GOVERNMENT IMMIGRATION EXECUTIVES (INCLUDING ME) FILE AMICUS BRIEF IN HAMAMA V. HOMAN IN 6TH CIRCUIT (“The Iraqi Christian Case”)

Here’s a copy of the brief prepared by Michael P. Doss, Esquire, of Sidley & Austin, Chicago IL:

Filed stamped copy of amicus brief

HERE’S THE INTRODUCTION SETTING FORTH “THE PLAYERS:”

IDENTITY AND INTEREST OF AMICI CURIAE

Amici have served in the U.S. Department of Justice and senior positions in the federal agencies charged with enforcement of U.S. immigration laws, and in those capacities have played substantial roles in the development, implementation, and adjudication of federal immigration policy and laws. Amici thus have an interest in this case, and in the just and efficient operation of the U.S. immigration enforcement system.

Mónica Ramírez Almadani served in the U.S. Department of Justice as Counsel to the Assistant Attorney General for the Civil Rights Division from 2009 to 2012, and as Deputy Chief of Staff and Senior Counsel to the Deputy Attorney General from 2011 to 2012, during which time she, among other things, advised on immigration

1 Amici submit this brief pursuant to Federal Rule of Appellate Procedure 29(a)(2). The parties have consented to the filing of this brief. Amici further state, pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), that no counsel for a party authored this brief in whole or in part, and no person other than the amicus curiae or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

1

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 6

policy and litigation and worked closely with the Executive Office of Immigration Review.

Seth Grossman served as Chief of Staff to the General Counsel of the U.S. Department of Homeland Security (“DHS”) from 2010 to 2011, as Deputy General Counsel of DHS from 2011 to 2013, and as Counselor to the Secretary of Homeland Security in 2013.

Stephen Legomsky served as Chief Counsel of U.S. Citizenship and Immigration Services from 2011 to 2013, and as Senior Counselor to the Secretary of Homeland Security in 2015.

Leon Rodriguez served as Director of U.S. Citizenship and Immigration Services from 2013 to 2017.

John Sandweg served as the Acting Director of U.S. Immigration and Customs Enforcement (“ICE”) in 2013 and 2014, and as the Acting General Counsel of DHS from 2012 to 2013.

Paul Wickham Schmidt served as an Immigration Judge for the U.S. Immigration Court from May 2003 until his retirement from the bench in June 2016. Before his Immigration Judge appointment, Judge Schmidt served as a Board Member and Board Chairman for the Board

of Immigration Appeals, Executive Office for Immigration Review, from 2

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 7

1995 until 2003. Judge Schmidt also served as acting General Counsel of the former Immigration and Naturalization Service (INS) from 1979 to 1981 and again from 1986 to 1987, and as the Deputy General Counsel of INS from 1978 to 1987.

As former leaders of the nation’s primary immigration agencies and the U.S. Department of Justice, and a former longtime Immigration Judge, amici are familiar with the operation of the United States immigration enforcement system. Amici support the district court’s preliminary injunction order and urge this Court to affirm that decision. Amici focus here on two issues before this Court: (i) first, whether the “motion to reopen” process currently available before our immigration courts provides Petitioners with an “adequate and effective” substitute for habeas relief; and (ii) second, whether the public interest is served by briefly staying enforcement of removal orders regarding these Iraqi nationals so that the immigration courts have a fair opportunity to review their claims.

3

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 8

Based on our experience helping to lead the federal agencies charged with enforcement of U.S. immigration laws, we are compelled to conclude that the district court reached the correct conclusion on both these issues. In particular, without the “breathing room” provided by the district court’s temporary stay of removal, our overburdened immigration courts are unable to provide an adequate and effective remedy for Petitioners having valid claims for protection from removal due to the likelihood they face persecution or torture on return to Iraq. In addition, given the clearly established changed circumstances in Iraq, which show that the Petitioners would have an objective well- founded fear of persecution if forced to return, the district court’s order furthers the public interest by affording aliens threatened with persecution on removal to Iraq a meaningful opportunity to have these claims heard. The some-1,400 Iraqi nationals impacted by the district court’s order represent a drop in the bucket compared to those subject to removal each year by immigration authorities, and a temporary stay of their removal to allow immigration courts time to assess their claims will not undermine the United States’ immigration enforcement system.

\

AND, HERE’S AN OUTLINE OF THE ARGUMENT:

ARGUMENT ……………………………………………………………………………….. 5

I. The District Court Was Correct In Finding That, Under Current Circumstances, The Immigration Courts Do Not Provide Petitioners with Adequate and Effective Alternatives To Habeas Relief…………………….5

A. The Immigration Courts System ……………………….. 5

B. Our Immigration Courts Are Overburdened and Underfunded………………………………………………………. 6

C. Emergency Stay Motions before Our Immigration Courts Do Not Currently Offer Petitioners an Adequate and Effective Alternative Remedy …..10

II. Allowing Petitioners Time to Obtain Review of Their Motions To Reopen Is In the Public Interest and Will Not Unreasonably Interfere with Immigration Enforcement ……………………………………………………………..15

A. The United States has a Strong Interest In Protecting from Removal Those Petitioners Who Will Face Persecution or Torture in Iraq…………15

B. The District Court’s Order Will Not Interfere With the United States’ Immigration Enforcement Scheme………………………………………..18

CONCLUSION…………………………………………………………………………… 21

CERTIFICATE OF COMPLIANCE…………………………………………….23

CERTIFICATE OF SERVICE…………………………………………………….24

***************************************

Many thanks to my “Fellow Amici” and to Michael Doss & his team at Sidley & Austin for a “Super Outstanding Job!” May Due Process prevail!!!!

PWS

02-14-18

“Brief Of The Two Steves” — Read The Yale-Loehr/Legomsky Amicus Brief Explaining Immigration Detention Filed With The Supremes in Jennings v. Rodriguez!

Jennings final amicus brief

TABLE OF CONTENTS

Interest of amici curiae………………………………………………. 1 Introduction and summary ………………………………………… 2 Argument…………………………………………………………………… 5

Aliens arriving in the United States at a port
of entry…………………………………………………………….6
1. Arriving asylum seekers are detained
  under color of Section 1225(b)(1)(B)(ii),
  even after an asylum officer has found a credible fear of persecution………………………… 6
  1. Asylum seekers detained under Section 1225(b)(1)(B)(ii) have limited oppor- tunity for review of detention or re-
    lease ……………………………………………………… 7
  2. Aliens seeking asylum may be detained for lengthy periods ……………………………….. 9
2. Arriving aliens who are not subject to expedited removal, but are not “clearly
  and beyond a doubt entitled to be
  admitted,” are detained under color of Section 1225(b)(2)(A)………………………………… 11
Aliens apprehended in the United States………. 13
1. Aliens apprehended in the United States
  but not convicted of a qualifying crime may be detained and are only sometimes permitted a bond hearing pending a
  removal decision ………………………………………. 13
2. Aliens apprehended in the United States
  who are convicted of a qualifying crime are subject to mandatory detention and are
  not provided opportunities for conditional release except in limited circumstances……. 16(I)

Table of Contents—Continued:

Aliens convicted of qualifying crimes are detained under Section 1226(c)…………… 16
Aliens detained under Section 1226(c) are released from detention in only narrow circumstances…………………………………….. 17
Aliens held under Section 1226(c) general- ly are detained for longer periods of time than are other aliens ………………………….. 19

C. Aliens ordered removed are generally detained until the removal order is
executed ………………………………………………….. 21

III. The bond hearing process provides limited procedural rights, which vary across the circuits………………………………………………………….. 22

Aliens detained under Section 1226(a) are entitled to bond hearings in certain circumstances………………………………………….. 22
Federal courts have held that aliens
detained under Sections 1225(b), 1226(a),
and 1226(c) are entitled to bond hearings when detention becomes prolonged………….. 28
1. The Ninth and Second Circuits provide for bond hearings for aliens detained
  over six months…………………………………… 30
2. The First, Third, Sixth and Eleventh Cir- cuits provide for bond hearings on a case- by-case basis………………………………………. 31
3. Bond hearings based on prolonged deten- tion are procedurally similar to Section 1226(a) bond hearings ………………………… 32

III

Table of Contents—Continued:

Conclusion…………………………………………………………………33 Appendix…………………………………………………………………..1a

****************************

This is an absolutely fantastic resource for anyone litigating, writing, speaking, or reporting on immigration detention written by two of the “best in the business.”

Rodriguez could be a problem for the Administration and the Immigration Courts. President Trump’s Executive Orders ramp up border enforcement, interior enforcement, immigration detention, and will further clog the already overwhelmed U.S. Immigration Courts.

If the Supreme Court places time limits on the Government’s ability to detain individuals without individual bond hearings pending the completion of Removal Hearings on the merits in Immigration Court, it could lead to an increase in the number of bond hearings conducted by U.S. Immigration Judges. Combined with pressure from the Administration to complete Removal Hearings before bond hearings are required, it likely will lead the Administration to “torque up” the pressure on Immigration Judges to cut corners and expedite hearings without regard to the requirements of due process. This is likely to force the issue of due process in Immigration Court into the Article III Federal Courts for resolution .

PWS

02/14/17

May 28 Amicus Brief Filed in W-Y-C- & H-O-B- Appeal

Related posts:

Related posts:

Related posts:

SIGN ON TO THE LETTER BY CLICKING THE LINK AT THE TOP!

Related posts:

Mar 4 14 Former IJs and BIA Members File Amicus Brief with AG

Related posts:

If you can help out, please respond directly to the attorney drafting the brief Jean-Claude Andre of Sidley Austin: JCAndre@sidley.com

Related posts:

Related posts:

Related posts:

Related posts: