⚖️YET ANOTHER BIA PRECEDENT, MATTER OF SORAM, 25 I&N DEC. 378 (BIA 2010), BITES THE DUST IN 9TH CIR. — “We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” as encompassing negligent child endangerment offenses.” — Diaz-Rodriguez v. Garland (2-1)

Diaz-Rodriguez v. Garland, 9th Cir., 09-10-21, published

Here’s the opinion:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/13-73719.pdf

PANEL: Consuelo M. Callahan and*Paul J. Watford, Circuit Judges, and Jed S. Rakoff, District Judge.

Opinion by Judge Watford; Dissent by Judge Callahan

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.

STAFF SUMMARY:

Granting Rafael Diaz-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).

In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).

The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

DIAZ-RODRIGUEZ V. GARLAND 3

both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court’s decision to designate that decision as non-precedential.

Applying the categorical approach, the panel identified the elements of California Penal Code § 273a(a): causing or permitting a child “to be placed in a situation where his or her person or health is endangered,” committed with a mens rea of criminal negligence. As to the federal offense, the panel explained that Congress enacted the ground of removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and did not define the phrase “a crime of child abuse, child neglect, or child abandonment.” In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however, the BIA held that the phrase encompassed child endangerment offenses committed with a mens rea of at least criminal negligence. In considering whether Soram was entitled to deference, the panel was guided by the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), where the Court observed that the term “sexual abuse of a minor” was undefined and then looked to normal tools of statutory interpretation in concluding that the statute unambiguously forecloses the BIA’s interpretation of it.

Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of §1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation as encompassing negligent child endangerment offenses. First, the panel explained that contemporary legal dictionaries from the time of IIRIRA’s enactment indicate that child abuse, child neglect, and child

4 DIAZ-RODRIGUEZ V. GARLAND

abandonment were well-understood concepts with distinct meanings that do not encompass one-time negligent child endangerment offenses. Second, the panel explained that the statutory structure suggested that Congress deliberately omitted child endangerment from the list of offenses specified in § 1227(a)(2)(E)(i). Third, the panel explained that the general consensus drawn from state criminal codes confirms that the phrase does not encompass negligent child endangerment offenses. The panel noted that the fourth source consulted in Esquivel-Quintana, related federal criminal statutes, did not aid its analysis.

Because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, the panel concluded that it is not a categorical match for “a crime of child abuse, child neglect, or child abandonment.” Accordingly, the panel concluded that Diaz-Rodriguez’s conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).

Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority’s peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority’s suggestion that § 1227(a)(2)(E)(i) is unambiguous is contrary to precedent and the unanimous opinions of the court’s sister circuits. Moreover, she wrote that the majority failed to recognize that the court’s task is limited to reviewing the agency’s interpretation for “reasonableness.” Instead, the majority proffered its own definition based primarily on selected dictionary definitions and its own research.

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

Who knows how this eventually will come out? But, what I can guarantee is until it is finally resolved, by the Supremes or otherwise, immigration practitioners and their clients will have a mess of inconsistency and bad decisions by EOIR on their hands.

Complicated issues involving criminal law come up all the time in EOIR “detention courts,” located in the Mayorkas/Garland “New American Gulag,” where many respondents are unrepresented or under-represented. How would an unrepresented respondent be able to prepare a “defense” like this? No way! The entire EOIR system suffers from some extreme constitutional problems that Garland has done nothing to address.

Having bad precedents like this in effect for a decade or more, almost always tilted toward DHS enforcement, results in many wrongful removals, as well as numerous remands and “redos” that help increase the astronomical 1.4 million case backlog! Having better judges on the BIA, real independent jurists with practical scholarly expertise, unafraid to interpret statutes and apply the law in favor of respondents when that is the “better view,” and to impose “best practices” on the Immigration Courts, is a necessary first step in addressing EOIR’s many legal and operational shortcomings.

It appears that Garland is disinterested in meaningful due process reforms and inserting real progressive judicial leadership into EOIR. The good news: With the vast majority of the immigration, human rights, and constitutional expertise and legal talent now in the private sector, and more talent coming out of law schools all the time, the NDPA stands a good chance of “litigating Garland’s failed EOIR to a standstill” over the next four years.

While that’s hardly the most desirable result, it would be infinitely better than the continuing due-process-denying “Clown Show” 🤡 that Garland currently runs at EOIR! Sometimes, you just have to take what the opposition gives you!

At what point will “powers that be” finally pay attention to the ongoing disaster at EOIR? When the backlog reaches 1.5 million? 2 million? 3 million? 4 million? 5 million? How many unjust and illegal removals will take place, and how many lives and futures irrevocably altered or ruined before this dysfunctional system finally reaches its “breaking point?”

EYORE — “Eyore is completely distraught that Garland has eschewed installing progressive expert judging and creative thinking, instead allowing the ‘death spiral’ to continue!” “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

🇺🇸Due Process Forever!

PWS

09-13-21

⚖️🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️👨🏾‍⚖️BIDEN TAPS DIVERSE GROUP OF PROGRESSIVES FOR ARTICLE III JUDGESHIPS, EVEN AS CAL DEM SENS DRAG FEET, & GARLAND CONTINUES TO RUN AMERICA’S MOST REGRESSIVE, DYSFUNCTIONAL, DISRUPTIVE, & NON-DIVERSE JUDICIARY @ EOIR! — How Are Progressives Going To “Climb The Mountain” When Garland Won’t Even “Pick The Low Hanging Fruit?”

Jennifer Bendery reports for HuffPost:

https://www.huffpost.com/entry/joe-biden-judicial-nominees-diverse_n_6138c48ee4b0eab0ada03532

President Joe Biden announced another historic slate of judicial nominees on Wednesday who would bring badly needed diversity to the nation’s federal courts.

His picks also begin to address a major vacancy problem on California’s courts.

Biden announced a total of eight new judicial nominees; three would fill seats on the U.S. Court of Appeals for the 9th Circuit and five would fill seats on U.S. district courts. All are up for lifetime appointments.

With Wednesday’s nominees, Biden has now nominated a total of 43 people to federal judgeships. Thanks in part to the Democrat-led Senate, he has been confirming judges faster than any president in more than 50 years by this point in their terms.

His latest nominees also reflect his push to bring more diversity to the federal bench, both professionally and demographically. The courts have long been represented by white, male judges with backgrounds as corporate attorneys or prosecutors. President Barack Obama helped to diversify the courts, adding historic numbers of women and LGBTQ judges, for example. But former President Donald Trump reversed that trend by overwhelmingly nominating straight, white, male, right-wing ideologues.

As a candidate, Biden vowed to bring a diversity of perspectives onto the courts, even promising to nominate a Black woman to the Supreme Court if and when a seat opens up there. He’s kept his word; so far, his court picks have been public defenders, civil rights lawyers, voting rights lawyers and historic firsts with Native American and Muslim American picks.

Wednesday’s nominees include people with backgrounds at legal civil rights organizations, too. Thomas worked for the NAACP Legal Defense and Educational Fund. Urias and Vera both worked for the Mexican American Legal Defense and Educational Fund.

California’s senators praised Biden for his six picks for courts located in their state.

“If confirmed, this slate of nominees will bring historic personal and professional diversity to California’s federal bench,” said Sen. Alex Padilla (D-Calif.). “Our justice system needs the experience and unique perspectives these public servants bring.”

But California needs far more nominees than Biden put forward Wednesday. The state still has a whopping 15 vacancies on its federal courts, in part because the state’s two U.S. senators aren’t moving quickly enough to recommend people to the White House to fill those seats.

Sen. Dianne Feinstein (D-Calif.) acknowledged there is more work to be done here.

“There are 15 additional vacancies on California’s district courts that need to be filled immediately and more expected next year,” Feinstein said. “I look forward to continuing to work with President Biden and Senator Padilla to ensure that the remaining vacancies on the federal courts in California are filled with well-qualified judicial candidates who reflect the makeup of the state.”

. . . .

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

Read the complete story at the link.

It’s an important step — but only a first step in the process of creating a diverse progressive Federal Judiciary, from top to bottom!

Meanwhile, a house built on a bad foundation is in trouble! In this case, that crumbling foundation is the nearly 600-judge U.S. Immigration Court at both the trial and appellate levels.

This “court” system, with nationwide jurisdiction and life or death authority over millions of lives and American families, is regressive, dysfunctional, and non-diverse, particularly when taking into account the composition of the American communities most directly affected by it’s too often defective, unprofessional, and biased decision making. That’s hardly surprising, because it was largely expanded, packed, weaponized, staffed, and directed in the “image” of Jeff Sessions, Billy Barr, and Gauleiter Stephen Miller!

Unlike Article III Judges, Immigration Judges currently are considered “DOJ Attorneys” who are selected outside the competitive Civil Service, have no “tenure” in their quasi-judicial positions, are subject to the control of the Attorney General, and can be reassigned, or in some cases terminated, at the will of the Attorney General. In simple terms, Garland could fix this badly broken system, but hasn’t done so.

The sorry condition of today’s Immigration Courts (“EOIR”) is particularly disgraceful when one considers the wide, diverse, progressive pool of potential judicial talent available in the private/NGO/sector who were either discouraged from applying under Trump or passed over in favor of lesser-qualified candidates perceived (whether accurately or not) to be more receptive and obedient to the overtly White Nationalist, xenophobic stance promoted by Trump’s DOJ.

To date, Garland has replaced zero (0) of the Trump judicial appointees. He has hired no notable progressive judges as inspirational leaders. He “promoted” one notable progressive to be among the several dozen “Assistant Chief Immigration Judges.” He outrageously appointed his first 27 Immigration Judges from among those “preselected” by Barr under defective procedures that have been universally condemned by progressive experts!

For the most part, without any progressive judicial leadership, precedents, or procedures, EOIR rambles on producing the same sloppy, haste-makes-waste, anti-immigrant, anti-asylum, racially and misogynistically tinged decisions that were the “hallmark” of the Trump-era EOIR.

If things don’t change quickly, I guarantee that American progressives will come to rue the squandered opportunity to radically reform EOIR and convert it into a model progressive judiciary that will showcase due-process-focused judging, innovation, and best judicial practices while saving lives and promoting racial justice, gender rights, and equal justice for all at the critical “retail level” of our justice system!

🇺🇸Due Process Forever!

PWS

09-10-21

⚠️MORE PROBLEMS LIKELY LOOM FOR GARLAND’S TOTALLY DYSFUNCTIONAL 🤡 EOIR AS EN BANC 9TH REJECTS “GOOD ENOUGH FOR GOVERNMENT WORK STANDARD” FOR CREDIBILITY REVIEW — “Any Reason To Deny Gimmicks” Fail Again As Court Requires EOIR To Comply With REAL ID! — Alam v. Garland

Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Here’s “quick coverage” from Dan Kowalski over at LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-en-banc-on-credibility-alam-v-garland

CA9, En Banc, on Credibility: Alam v. Garland

“We voted to rehear this case en banc to reconsider our “single factor rule,” which we have applied in considering petitions for review from decisions by the Board of Immigration Appeals (“BIA”). The single factor rule, as we have applied it, requires us to sustain an adverse credibility finding if “one of the [agency’s] identified grounds is supported by substantial evidence.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003). On rehearing en banc, we hold that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and we overrule our prior precedent establishing and applying it. We remand this case to the three-judge panel to re-examine the petition for review in light of our clarification of the standard for reviewing the BIA’s adverse credibility determinations. … Given the REAL ID Act’s explicit statutory language, we join our sister circuits and hold that, in assessing an adverse credibility finding under the Act, we must look to the “totality of the circumstances[] and all relevant factors.” § 1158(b)(1)(B)(iii). There is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination—our review will always require assessing the totality of the circumstances. To the extent that our precedents employed the single factor rule or are otherwise inconsistent with this standard, we overrule those cases. We remand this case to the three-judge panel for reconsideration in light of the newly articulated standard for reviewing adverse credibility determinations.”

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

Even with Article III Courts, including the 9th Circuit, generally “drifting right,” “good enough for Government work” has been rejected! That ought to help Garland boost the EOIR backlog!

The EOIR/DOJ policy right now appears to be “give any reason to deny,” hope that OIL can make at least one of them stick, and count on righty Circuit Judges to “swallow the whistle.” While that has certainly happened in the 5th Circuit, and to some extent in the 11th Circuit, there still appear to be enough Article IIIs out there critically reviewing EOIR’s too often patently substandard work product to make Garland’s indolent “look the other way” approach to the EOIR mess highly problematic.

Analyzing all the factors also might be inconsistent with mindless, due-process-denying three or four per day “merits quotas,” invented and imposed by Jeff “Gonzo Apocalypto” Sessions (someone with zero (0) Immigration Court experience and a well-justified lifetime reputation as a racist xenophobe — how does Matthews v. Eldridge allow a guy like that to pick and “run” judges — the Article IIIs might choose to look the other way, but most L-1 students know this is wrong and unconstitutional).

Just aimlessly listing common testimonial problems and hoping OIL will find one or more of them actually in the record is much faster (if you don’t count the impact of Circuit remands!) That it’s inconsistent with the statute, the Constitution, and, actually, BIA precedent seems to be beside the point these days. Of course, EOIR’s “assembly line jurists” also get “dinged” for remands.

Is there is anybody left at EOIR HQ today who could properly teach “totality of the circumstances” under REAL ID?

My observation from Arlington was that the number of adverse credibility findings and asylum denials went down substantially once the Fourth Circuit, and even occasionally the BIA, began enforcing “totality of the circumstances and all relevant factors” under REAL ID. As lawyers “got the picture” and began providing better independent corroborating evidence and documentation, the ability to “nit-pick” testimony, find the respondent “not credible,” and make it stand up on review diminished, as its well should have!

Of course, in my mind, REAL ID and the Fourth Circuit were just “re-enforcing and adopting” observations that members of our deposed “Gang of Four or Five” had made in numerous dissents from our BIA colleagues “undue deference” to poorly reasoned and thinly supported adverse credibility determinations, particularly in asylum cases.

More careful analysis of the record as a whole, often with the help of JLCs, became the rule at Arlington. And, after a few initial setbacks in the Fourth Circuit, ICE in Arlington generally stopped pushing for unjustified adverse credibility rulings and adopted approaches that actually complied with Fourth Circuit law.

The antiquated “contemporaneous oral decision format,” put on steroids by Sessions and Barr, is particularly ill-suited to the type of careful analysis required by the current statute, not to mention due process. And, having far too many newer Immigration Judges who have no immigration background and who have never had to represent an individual in Immigration Court is also a formula for failure, particularly when combined with inadequate training and idiotic “quotas.”

I’m not sure that the famous Rube Goldberg could have created a more convoluted, inefficient, and irrational process than exists at today’s EOIR. It simply can’t be fixed without leadership and assistance from outside experts who understand the problems (because they and their clients have “lived them”) and who aren’t wedded to all the mistakes and failed “silver bullet solutions” of the past!

By contrast with the EOIR mess, it’s amazing what changes an expert appellate body that actually takes its job and due process seriously can effect. Imagine if we had an expert BIA that made due process and treating individuals fairly “job one,” rather than operating as a “whistle stop on the deportation railroad.”

The ongoing EOIR clown show 🤡 just keeps getting exposed. But, nobody in charge seems to care! That’s a shame, 🤮 because “human lives, ⚰️ and perhaps the survival of our democracy, 🇺🇸 hang in the balance here!”

🇺🇸Due Process Forever!

PWS

08-09-21

🇺🇸🗽⚖️NDPA VIRTUAL OPPORTUNITY: Meet Rising Superstar 🌟 & Social Justice Advocate Denea Joseph, Current Ousley Social Justice Resident @ Beloit College — Friday, Sept. 17 @ 7:00 PM CDT — FREE Virtual Link Here!

Of interest? You can join virtually.

———- Forwarded message ———

From: Atiera Lauren Coleman <colemana@beloit.edu>

Date: Wed, Sep 8, 2021 at 3:10 PM

Subject: [EVENT] Ousley Residency: All Black Lives Matter: Black Immigrants and the Immigrants’ Rights Movement

To: <facstaff@lists.beloit.edu>

Ousley Residency Keynote Speaker

Denea Joseph

Friday, September 17, 7:00 PM – In-person & Virtual – (Add to Google Calendar)

BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice

The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.

Event Details

Date: Friday, September 17, 2021

Time: 7:00 PM -8:30 PM

How to attend

In-person – Weissberg Auditorium – Powerhouse

Virtual – Join Zoom Meeting https://beloit.zoom.us/j/81172664933

—

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

This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.

The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.

Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!

For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.

From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!

🇺🇸Due Process Forever!

PWS

09-09-21

⚖️🗽🇺🇸👨🏻‍⚖️👩‍⚖️NEVER TOO LATE: 22 YEARS AGO, FIVE OF US DISSENTED FROM THE BIA’S “ROLLOVER” TO IMMIGRATION ENFORCEMENT IN THE “JOSEPH II” BOND CASE — Four Of Us Were “Exiled” For Our Views — Now, The 3rd Circuit Says We Were Right! — Gayle v. Warden!

Kangaroos — There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License.

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-mandatory-detention-gayle-v-warden

CA3 on Mandatory Detention: Gayle v. Warden

Gayle v. Warden

“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”

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

As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!

It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.

Talk about a defective system that should have been changed ages ago! But, that’s EOIR! And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!

Here’s my favorite quote from Judge Krause’s opinion:

Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).

Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):

https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3398.pdf

Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):

CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined

I respectfully concur in part and dissent in part.

I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.

However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in cus- tody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to prevail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.

“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.

Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!

EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.

Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.

Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.

Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!

🇺🇸Due Process Forever!

PWS

09-08-21

🇺🇸🗽⚖️USDC SLAMS DHS/DOJ ILLEGAL “TURNBACK” OF ASYLUM SEEKERS AT PORTS OF ENTRY! — Al Otro Lado v. Mayorkas — Garland’s Failure To Embrace Long Overdue Progressive Reforms @ DOJ & EOIR Continues To Take Its Toll!

Dan Kowalski reports on LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/turnbacks-are-illegal—al-otro-lado-v-mayorkas

“Turnbacks Are Illegal” – Al Otro Lado v. Mayorkas

AIC, Sept. 2, 2021

“A federal judge declared unlawful the U.S. government’s turnbacks of asylum seekers arriving at ports of entry along the U.S southern border. The court ruled that the United States is required by law to inspect and process asylum seekers when they present themselves at ports of entry, and condemned the practice of denying access to the asylum process through metering and similar practices.

The decision came after oral arguments were held before U.S. District Judge Cynthia Bashant of the Southern District of California on Tuesday.

The case, Al Otro Lado v. Mayorkas , was brought 4 years ago by Al Otro Lado and a group of 13 individuals seeking asylum in the United States whom U.S. Customs and Border Protection turned back. The Center for Constitutional Rights, Southern Poverty Law Center, American Immigration Council, and the law firm Mayer Brown challenged the policy.

Nicole Ramos, Border Rights Project Director of Al Otro Lado, said, “After over four years, a U.S. federal court concluded what our team at Al Otro Lado has known all along, that CBP’s turning away of asylum seekers from ports of entry and metering are illegal and violate the rights of the individuals and families most in need of our protection. Despite DHS’s lies about their capacity to process asylum seekers, the reasons behind why metering exists, and the agency’s destruction of evidence in the case, today the rule of law and justice prevail.”

Baher Azmy, Legal Director of the Center for Constitutional Rights, said, “This is such an important victory for our heroic partners at Al Otro Lado, who have fought for asylum seekers for years against every variation of government lie, denial, and abuse of power. The decision will protect thousands of vulnerable people at the border.”

Melissa Crow, Senior Supervising Attorney with the Southern Poverty Law Center, said, “This decision affirms what people fleeing persecution and immigrant rights advocates have argued for years: the U.S. government’s denial of access to the asylum process at ports of entry is blatantly illegal. The Court properly recognized the extensive human costs of metering, including the high risk of assault, disappearance, and death, when CBP officers flout their duty to inspect and process asylum seekers and instead force them to wait in Mexico.”

“Turning back asylum seekers at ports of entry unconstitutionally stripped people of their right under U.S. law to access the asylum process in the United States. Ports of entry are a critical part of our nation’s asylum system and serve as the front door for arriving asylum seekers. Today’s decision underscores that the government may not simply shut that door and deny asylum seekers this right. The law protects asylum seekers arriving at our doorstep as it does those who stepped over the threshold. CBP must inspect and process arriving asylum seekers,” said Karolina Walters, senior attorney at American Immigration Council.

“Today’s decision is not just a victory for justice and the rule of law, it takes a significant step towards ending a troubling chapter in our nation’s history,” said Stephen Medlock, a partner at Mayer Brown LLP. “Under the turnback policy that was at issue in this case, the very government officials that should have been welcoming and assisting victims of persecution and torture were told to turn them away from the United States. The district court found that to be unequivocally illegal.”

For more information, visit the Southern Poverty Law Center, Center for Constitutional Rights and American Immigration Council.

###

For more information, contact:

Maria Frausto at the American Immigration Council, mfrausto@immcouncil.org or 202-507-7526; Marion Steinfels at SPLC, marion.steinfels@splcenter.org or 202-557-0430; Jen Nessel, Center for Constitutional Rights, 212-614-6449, jnessel@ccrjustice.org; Melissa Flores, Al Otro Lado, melissa@alotrolado.org, 213-444-6081.”

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Not surprisingly to those of us who understand the system, this illegal, inane, and unnecessary policy instituted by the Trump kakistocracy and inexplicably continued under Biden has fueled illegal entries, as we effectively gave asylum seekers no legal avenue to make their applications.

As noted above, the Trump Administration also lied to the court and the public about the justification for the program, which clearly was fabricated.

But, to be fair, the Biden Administration has done little to re-establish the rule of law for asylum seekers at the Southern Border. Obviously, this case demands a long overdue investigation into the DOJ attorneys who handled and defended the indefensible, and the misconduct of those attorneys and CBP officials in hiding or destroying evidence and creating bogus scenarios to “justify” their illegal actions. But, don’t hold your breath for Garland, who seems largely indifferent to misconduct at the DOJ or anywhere else in Government, to take any action.

Legal asylum seekers suffer severe consequences for the Government’s concerted attack on their legal rights and humanity. The “perps on our payroll” — not so much. No wonder our legal system is in free fall!

It isn’t clear to me how this case interacts with Biden’s continuation of Title 42 which illegally bars many asylum seekers from pursuing their claims in any manner. There are exceptions, but they appear to be somewhat arbitrary and depend mostly on what CBP feels like doing on any particular day.

For those allowed to pursue claims in the U.S., the Biden Administration still doesn’t have a functioning way of promptly and fairly determining their cases. “Dedicated Dockets” at EOIR are just another “designed to fail” gimmick, almost certain to increase backlogs without promoting fairness and efficiency.

That which would make the asylum system functional for all — immediate EOIR reform, including new progressive leadership, a progressive BIA, much better asylum precedents, some progressive IJs well-qualified to handle asylum cases fairly and efficiently (e.g., getting them right initially, insisting that Asylum Officers do likewise, and cracking down on frivolous behavior by DHS in Immigration Court, rather than the haste makes waste “any reason to deny culture” that drives EOIR’s incredibly poor and inept performance on asylum cases today) and working agreements with the private bar for representation and reasonable scheduling — has been of little visible interest to Garland and his lieutenants to date.

With Congress more or less living on another planet, that’s likely to leave reshaping the asylum system to the Federal Courts. There, as this case shows, there is still a smattering of Article III Judges committed to due process and the rule of law for asylum seekers. But, there are now enough right wing extremists put on the bench by the GOP to make it highly likely that any hard won progressive judicial reforms will eventually be undone.

The one place where progressive reforms could actually take place, and be made to endure, at least for the balance of this Administration — EOIR — has been mishandled by Garland to date.

What an awful, disgraceful mess — with no viable plans for improvement on the horizon!

Proposed asylum regulation changes that rely heavily on a currently broken, dysfunctional, non-expert EOIR to protect the rights of asylum seekers — after years of intentionally bashing them on behalf of their nativist overlords — is an obvious non-starter that fails to “pass the straight face test” as those who actually are condemned to practice before EOIR know all to well. Of course, the regulatory proposal wasn’t drafted by those actually familiar with the human trauma of litigating asylum cases at EOIR.

Ah, Casey, “why can’t anyone out there in ‘Bidenland’ play this game?”

“Casey Stengel might understand Judge Garland. The rest of us not so much.”
PHOTO: Rudi Reit
Creative Commons

🇺🇸Due Process Forever!

PWS

09-04-21

🇺🇸CELEBRATE HISPANIC HERITAGE MONTH WITH SOME “REFORM EOIR NOW” ACTIVISM: “NO MORE PATIENCE” FOR GARLAND’S DYSFUNCTIONAL EOIR THAT DEMEANS AND MISTREATS HISPANICS & OTHER MIGRANTS OF COLOR! — Where’s The New Progressive Hispanic Leadership Who Could Fix A Disturbingly “Whitewashed” Immigration Court System That Ignores The Human Impact Of Their Horrible, Tone-Deaf, One-Sided Decision-Making On Communities Of Color Throughout America!

View the latest edition of “Tea’s Coffee” featuring the amazing Tea Ivanovic @ Immigrant Foods:

https://youtu.be/dY_-Ep2skAg

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Thanks, Tea!

Immigration Courts are the “living, breathing repudiation” of racial justice in America!🏴‍☠️

Repeatedly, Federal Courts at all levels say that foreign nationals are entitled to due process under the Fifth Amendment.

Then, they often go on to convert that to an insulting platitude by approving legal travesties and substandard performance by EOIR inflicted on migrants of color, their attorneys (if any), and their communities. Maybe, it’lls because talented Hispanic judges with actual experience representing asylum seekers and other migrants in Immigration Court are so few and far between. Maybe it’s because Garland has failed to actively recruit judges from among immigration and human rights attorneys of color and has continued to employ a flawed “insider-tilted” selection process that was designed and implemented to “slam the door” on experts from the non-governmental advocacy and academic communities.

Whatever the reason, EOIR has become the “living refutation” of the assertion that Hispanics and other communities of color are treated fairly and equally under our laws and that that race-based decision-making and jurisprudence have vanished from our legal system.

Maybe it’s time for Hispanics and their allies to stop being “tolerant of inequity and bias” and start taking a more aggressive and less compromising position on Garland’s disgraceful, disorderly, dysfunctional, non-diverse, tone-deaf Immigration Courts! Your voices are NOT being heard by those running the Star Chambers and cranking out “assembly line injustice.”

Why does the Hispanic community put up with being demeaned, dehumanized, and degraded by Garland’s “Clown Courts”🤡 and also by a Democratic Party that promised change but has delivered “same old same old” at EOIR?

Recent Supreme Court mockeries of justice show that the rights of minorities are under assault by a radically right-wing Article III Judiciary stocked with GOP appointees. The Immigration Courts, by contrast, are under the total control of the Administration and present an unparalleled opportunity for minority communities to both showcase their judicial skills and to start winning back their legal rights after four years of unrelenting assault by the White Nationalist right.

Why is this perhaps once-in-a lifetime opportunity for long overdue, radical reform of a broken, biased, and incompetent system being squandered and buried by Garland as if Stephen Miller and his cronies were still calling the shots? How many Hispanic and other lives will be sacrificed to EOIR over the next three plus years? How many attorneys of color will continue to be abused, misused, and under-appreciated by an Administration pledged to “do better?” What will be left of racial justice in America if entrusted to a DOJ that doesn’t even believe in the concept in their own court system?

🇺🇸Due Process Forever!

PWS

09-02-21

THE GIBSON REPORT — 08-30-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

ALERTS

Final week of email filing: Email filing with EOIR ends at the remaining courts on September 4, 2021.

CDC Requirements for Immigrant Medical Examinations: COVID vaccine to be required for medical exams starting October 1, 2021.

NEWS

Court won’t block order requiring reinstatement of “remain in Mexico” policy

SCOTUSblog: The Supreme Court on Tuesday night rejected the Biden administration’s plea for a reprieve from a district-court order requiring it to reinstate a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court. The court was divided on the decision to deny relief, with the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicating that they would have granted the government’s request and put the district court’s order on hold. See also The Supreme Court’s stunning, radical immigration decision, explained; Biden administration will continue challenging ‘Remain in Mexico’.

U.S. officials provided Taliban with names of Americans, Afghan allies to evacuate

Politico: U.S. officials in Kabul gave the Taliban a list of names of American citizens, green card holders and Afghan allies to grant entry into the militant-controlled outer perimeter of the city’s airport, a choice that’s prompted outrage behind the scenes from lawmakers and military officials. See also In evacuation mission’s 11th hour, hope dims for Afghans seeking escape.

Federal judge orders ICE to test detainees for COVID-19

AP: U.S. Immigration and Customs Enforcement must test detainees for COVID-19 before they are transferred to the immigrant detention center in Tacoma, a federal judge ordered Monday.

Little-Known Federal Software Can Trigger Revocation of Citizenship

The Intercept: ATLAS helps DHS investigate immigrants’ personal relationships and backgrounds, examining biometric information like fingerprints and, in certain circumstances, considering an immigrant’s race, ethnicity, and national origin. It draws information from a variety of unknown sources, plus two that have been criticized as being poorly managed: the FBI’s Terrorist Screening Database, also known as the terrorist watchlist, and the National Crime Information Center. Powered by servers at tech giant Amazon, the system in 2019 alone conducted 16.5 million screenings and flagged more than 120,000 cases of potential fraud or threats to national security and public safety.

Migrant children spend weeks at US shelters as more arrive

AP: Five months after the Biden administration declared an emergency and raced to set up shelters to house a record number of children crossing the U.S.-Mexico border alone, kids continue to languish at the sites, while more keep coming, child welfare advocates say.

A Squalid Border Camp Finally Closed. Now Another One Has Opened.

NYT: a new camp sprang up about 55 miles farther west, in the Mexican city of Reynosa, and this one, aid workers say, is far worse than the one at Matamoros ever was. Overcrowded already, with more than 2,000 people, it is filthy and foul-smelling, lacking the health and sanitation infrastructure that nonprofit groups had spent months installing at Matamoros. Assaults and kidnappings for ransom are commonplace.

A Texas Sheriff’s Grim Task: Finding Bodies as Migrant Deaths Surge

NYT: . Through July, Border Patrol officials found 383 dead migrants, the highest toll in nearly a decade, and one already far surpassing the 253 recovered in the previous fiscal year.

Gov. DeSantis Demands Info On Migrants Moving To Fla.

Law360: Florida Gov. Ron DeSantis demanded the Biden administration provide personal information on undocumented migrants being relocated to Florida, including names, addresses and the number of people who tested positive for COVID-19 or refused the coronavirus vaccine.

Feds OK’d Work Authorization For 800K Without Full Vetting

Law360: A federal watchdog on Wednesday called on U.S. Citizenship and Immigration Services to improve its employment eligibility verification system, finding shortcomings that kept the agency from accurately confirming workers’ identities and work authorization in at least 800,000 instances.

LITIGATION/CASELAW/RULES/MEMOS

Supreme Court Allows “Remain in Mexico” Policy to Be Reinstated

AILA: The Supreme Court denied the application for a stay and thus preventing the Biden administration’s effort to halt the reminstatement of “Remain in Mexico.” (Biden, et al. v. Texas, et al., 8/24/21)

Week Ahead in Immigration: Aug. 30, 2021

Reuters: Here are some upcoming events of interest to the immigration law community. All times are local unless stated otherwise.

CA5 Extends Stay on Preliminary Injunction on Biden Enforcement Memos Indefinitely

AILA: The court extended the district court stay on the preliminary injunction on the Biden immigration enforcement memos indefinitely. (Texas, et al., v. USA, et al., 8/27/21)

2nd Circ. Says Judge Unfairly Nitpicked Asylee’s Story

Law360: A Nepalese asylum-seeker has another shot at avoiding deportation after the Second Circuit ruled Friday that an immigration judge had prematurely declared his story of Maoist intimidation and violence not credible without giving him a chance to address minor discrepancies.

2nd Circ. Says Asylum-Seeker Could Have Moved Within India

Law360: The Second Circuit rejected an immigrant’s arguments Wednesday that after being beaten by members of a rival political party for his affiliation with a Sikh party, he could not escape the threat of more violence by moving within India, affirming a Board of Immigration Appeals’ decision to deny asylum and deport the man.

BIA Must Weigh 5th Circ. Ruling In Cannabis Removal Order

Law360: A panel of Fifth Circuit judges vacated a Pakistani man’s deportation order issued after he was convicted for synthetic marijuana possession, finding that the Board of Immigration Appeals failed to fully consider whether his state law conviction is equivalent to federal drug law.

CA5 Finds BIA Did Not Err by Declining to Construe Petitioner’s Motion to Reconsider as a Motion to Reopen

AILA: Where the petitioner alleged that the U.S. Supreme Court’s decision in Sessions v. Dimaya made his removal unlawful, the court held that the BIA did not err by construing his motion as a motion to reconsider nor by denying it as time barred. (Gonzalez Hernandez v. Garland, 8/13/21)

CA8 Finds BIA Erred by Failing to Apply Matter of Sanchez Sosa Factors to U Visa Applicants

AILA: The court granted the petition for review of the BIA’s denial of the petitioners’ motion to reopen, finding the BIA abused its discretion by departing from established policy when it failed to apply the Matter of Sanchez Sosa factors. (Gonzales Quecheluno v. Garland, 8/12/21)

CA8 Upholds Denial of Deferral of Removal Under the CAT to Somalian Petitioner

AILA: Where BIA had reversed the IJ’s findings that petitioner would more likely than not be tortured in Somalia, the court found that BIA applied the correct legal standard to the Convention Against Torture (CAT) claim and did not engage in impermissible fact finding. (Mohamed v. Garland, 8/13/21)

8th Circ. Says INA ‘Vagueness’ Can’t Stop Deportation

Law360: The Eighth Circuit refused to stop an Ethiopian refugee’s deportation, ruling Friday that a portion of the Immigration and Nationality Act allowing the deportation of certain migrants who face persecution upon return is ambiguous, but not unconstitutionally vague.

9th Circ. Slams Judge For Nitpicking Rape Survivor Testimony

Law360: The Ninth Circuit Wednesday revived a Cameroonian rape survivor’s asylum bid, ruling that the immigration judge cherry-picked discrepancies in the woman’s testimony to justify deporting her and “displayed a dubious understanding of how rape survivors ought to act.”

CA9 Holds That INA §212 Applies for Cancellation of Removal Purposes to Petitioner Who Legally Entered the United States

AILA: The court upheld BIA’s determination that petitioner was ineligible for cancellation of removal under INA §240A(b)(1)(C) due to his conviction for an offense described in INA §212(a)(2), even though he had been previously admitted into the United States. (Sanchez-Ruano v. Garland, 8/11/21)

CA9 Says Failure to Notify Petitioner That Alleged False Claim of Citizenship Would Be at Issue During Hearing Violated Due Process

AILA: The court held that the IJ failed to put the petitioner on notice that his alleged false claim of U.S. citizenship would be at issue during his hearing, and that such failure violated due process by denying him a full and fair hearing. (Flores-Rodriguez v. Garland, 8/16/21)

CA9 Says There Is No Colorable Constitutional Claim Exception to Statutory Limits on Judicial Review of Expedited Removal Orders

AILA: The court found it lacked jurisdiction to review petitioner’s challenge to his expedited removal proceedings, concluding that the Supreme Court’s decision in DHS v. Thuraissigiam abrogated any colorable constitutional claim exception to INA §242(a)(2)(A). (Guerrier v. Garland, 8/16/21)

CA9 Says Substantial Evidence Supported BIA’s Holding That Serious Nonpolitical Crime Bar Applied to Petitioner with Interpol Red Notice

AILA: The court held that an Interpol Red Notice, among other evidence, created a serious reason to believe that the petitioner had committed a serious nonpolitical crime before entering the United States, and that he was ineligible for withholding of removal. (Villalobos Sura v. Garland, 8/17/21)

CA9 Holds That Petitioner Did Not Suffer Past Persecution in India After Considering Non-Exhaustive List of Factors

AILA: The court held that the record did not compel the conclusion that the petitioner suffered hardship in India that rose to the level of past persecution, where he did not experience significant physical harm and his harm was an isolated event, among other factors. (Sharma v. Garland, 8/17/21)

CA9 Says Vehicle Theft Under California Vehicle Code §10851(a) Is Not an Aggravated Felony

AILA: Granting in part the petition for review, the court held that vehicle theft under California Vehicle Code §10851(a) is indivisible in its treatment of accessories after the fact, and thus is not an aggravated felony theft offense under INA §101(a)(43)(G). (Lopez-Marroquin v. Garland, 8/18/21)

CA11 Concludes That Petitioner’s Federal Conviction for Making False Statements in an Immigration Application Was an Aggravated Felony

AILA: The court denied the petition for review, holding that because petitioner was convicted of a violation of 18 USC §1546(a) and his sentence was greater than one year, his conviction expressly fell under the definition of aggravated felony in INA §101(a)(43)(P). (Germain v. Att’y Gen., 8/18/21)

Split 11th Circ. Won’t Revive Sri Lankan’s Asylum Bid

Law360: A split Eleventh Circuit panel refused Tuesday to grant asylum to a member of a Sri Lankan ethnic minority or to block his deportation, ruling he hasn’t proven past persecution or credible fear of future persecution.

Federal Court Blocks Texas Migrant Transportation Order

Law360: A Texas federal judge has blocked an executive order from the state’s governor banning the transportation of certain migrants in the state, holding it violates the supremacy clause of the Constitution by authorizing state officials to make federal immigration determinations.

ICE Must Test Migrants Before Sending Them To Wash. Center

Law360: U.S. Immigration and Customs Enforcement must test immigrants for COVID-19 before transferring them to a Washington state detention center, after a federal judge blamed the agency for 240 detainees and facility staff contracting the virus over the past three months.

DHS Says Border Turnback Policy Doesn’t Exist

Law360: The U.S. Department of Homeland Security has told a California federal judge that it could not produce an administrative record related to its practice of turning back asylum-seekers at the southern border because no such policy existed.

USCIS Provides Notice of Proposed Class Action Settlement in SIJ Cases A.O., et al. v. Jaddou, et al.

AILA: USCIS provided information regarding a proposed class settlement in A.O., et al. v. Jaddou, et al. No. 19-cv-6151 (N.D. Cal.) regarding juvenile court orders in the California Juvenile Court with subsequent filed Special Immigrant Juvenile (SIJ) petitions after the age of 18 years old.

DHS Releases Guidance on Parole for Certain Afghan Nationals Into the U.S.

AILA: DHS released a memo with guidance on immigration processing for certain Afghan nationals, stating that they will be paroled into the U.S. on a case-by-case basis for a two-year period and may be eligible to apply for status through USCIS.

EOIR Announces Launch of FOIA Public Access Link

AILA: EOIR launched its FOIA Public Access Link (PAL), which will allow users to submit requests, check the status of requests, download records, browse the FOIA reading room, and correspond with the EOIR FOIA Service Center. The PAL also allows users to pay required fees online.

ICE Issues Interim Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities

AILA: ICE issued interim guidance to all OPLA attorneys to guide them in appropriately executing interim civil immigration enforcement and removal priorities and exercising prosecutorial discretion. Note, on 8/19/21, OPLA suspended reliance on this guidance due to litigation.

Application for Waiver of Grounds of Inadmissibility

USCIS: Starting 10/26/21, we will only accept the 7/20/21 version.

RESOURCES

AILA: How to Request CIS Ombudsman’s Individual Case Assistance

AILA: Find Resources for Assisting Afghan Clients

AILA: Practice Alert: Impact of Ongoing Litigation on the Exercise of Prosecutorial Discretion

AILA: Practice Alert: Proposed Rule to Change Asylum Processing for Individuals in Expedited Removal

AILA: Practice Alert: Starting October 1, COVID-19 Vaccinations Required for Applicants Applying for LPR or Refugee Status

AILA: Practice Alert: Changes to USCIS Field Office Interview Scheduling

AILA: Practice Alert: Impact of Ongoing Litigation on the Exercise of Prosecutorial Discretion

AILA: Practice Pointer: Heightened Scrutiny of Individuals of Iranian Descent

AILA: Liaison Update: Key Takeaways from AILA Meeting with CIS Ombudsman

AILA: How to Request CIS Ombudsman’s Individual Case Assistance

CLINIC: Frequently Asked Questions: TPS Eligibility and the Application Process

CLINIC: New ICE “Victim-Centered” Policy Protects Noncitizens Eligible for Humanitarian Relief

CLINIC: Assistance for Afghans Toolkit

EOIR: FOIA Public Access Link

ICE: Attorney Information and Resources

ICE: New ERO Varick detained contact list (attached)

ICE: Updated NYC OPLA Instructions for PD (attached)

ILRC: Enforcement Priorities Litigation Update: August 2021

ILRC: Potential Remedies for Immigrant Families After Losing a Family Member to the Pandemic – Widow(er)s of U.S. Citizens, 204(l), and Humanitarian Reinstatement

ILRC: Probation Agencies and the Deportation Pipeline

IRAP SIV/P-2 Training for Attorneys

USCIS: Temporary Protected Status (TPS) Webinar PowerPoint (PDF, 1.26 MB)

USCIS: Temporary Protected Status (TPS) Webinar Questions and Answers (PDF, 174.17 KB)

USCIS: Temporary Protected Status (TPS) for Haiti Questions and Answers (PDF, 226.5 KB)

USCIS: Temporary Protected Status (TPS) for Haiti Webinar (PDF, 1.55 MB)

USCIS: Temporary Protected Status (TPS) for Somalia Questions and Answers (PDF, 145.65 KB)

USCIS: Temporary Protected Status (TPS) for Somalia Webinar (PDF, 1.24 MB)

USCIS: Online Filing Webinar: Form I-821, Application for Temporary Protected Status (PDF, 3.58 MB)

EVENTS

8/31/21 Hot Topics in Marriage-Based Adjustment of Status

9/2/21 EOIR to Host Information Sessions in Advance of EOIR Courts & Appeals System (ECAS) Launch at Certain Immigration Courts

9/2/21-9/23/21 Waiver Series: Dealing with Denials

9/8/21 Fearless Lawyering: Administrative Closure Breaking Updates and Strategies

9/9/21 APA Litigation: How to Take a USCIS Denial to Federal Court

9/14/21 USCIS Virtual Listening Session on Public Charge Advance Notice of Proposed Rulemaking

9/15/21 Introduction to BIA Appeals

9/15/21 Legal Remedies for Immigrant Survivors: Introductory Seminar Series – Part III: Getting Survivors & Their Families to the Finish Line

9/16/21 Managing Immigration Compliance in a Remote and Hybrid Post-Pandemic World

9/17/21 Strategic Considerations in the Wake of Niz-Chavez

9/22/21 Adjustment of Status: Eligibility and Pitfalls

9/23/21 EOIR to Host Information Sessions in Advance of EOIR Courts & Appeals System (ECAS) Launch at Certain Immigration Courts

9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

9/27/21-9/28/21 Immigration Law and Policy Conference

9/28/21 Waiver Series: Overview of the Grounds of Inadmissibility

9/29/21 Temporary Protected Status: Updates and Options

9/30/21 Crafting a Winning Direct Examination: Practical Tips and Examples

9/30/21 Naturalization and Crimes

10/5/21 USCIS Virtual Listening Session on Public Charge Advance Notice of Proposed Rulemaking

10/5/21 Waiver Series: Working With Clients to Build Strong Waiver Cases

10/6/21 Challenging Agency Delays in District Court

10/7/21 Introduction to Derivation of Citizenship

10/5/21 Waiver Series: Extreme Hardship and Discretion

10/13/21 Liberian Refugee Immigration Fairness Act: Updates 10/13/21

10/14/21 Detention & Deportation System for Children and Youth

10/19/21 Webinar Series: Putting the Case Together

10/19/21 The Categorical Approach Now

10/20/21 What is Happening with DACA?

10/21/21 Public Charge: Advising Clients in the Current Landscape

10/26/21 Emerging Issues in Asylum Law

10/27/21 Challenging Expedited Removal and Reinstatement Orders

11/2/21 U Visa Adjustment

11/10/21 Remedies for Surviving Relatives

11/11/21 Inadmissibility: A Look at Common Grounds and Red Flags

11/16/21 Advocating for Prosecutorial Discretion Under the Current Enforcement Priorities

11/23/21 Establishing Social Group in Asylum Claims

11/29/21-12/3/21 Partial to Full Accredited Representative Initiative 2021

12/1/21 54th Annual Immigration and Naturalization Institute

12/2/21 Post-Conviction Relief For Immigrants: New Laws, New Developments, New Advice

12/7/21 Hardship in Non-LPR Cancellation Cases

12/9/21 December Immigration Update

12/15/21 FOIA

ImmProf

Monday, August 30, 2021

EU to recommend reinstating Covid-related travel restrictions on US, reports say

Podcast: Rethinking immigration on The Weeds

Naturalized Citizen of the Day: Sandra Ok, Actress (Canada)

Sunday, August 29, 2021

Poetry Break: Things We Carry on the Sea by Wang Ping

Saturday, August 28, 2021

58th Anniversary of “I Have a Dream”

Trump Aide Stephen Miller Laid Groundwork For Disastrous Afghan Evacuation

Friday, August 27, 2021

From The Bookshelves: Clamouring for Legal Protection–What the Great Books Teach Us About People Fleeing from Persecution

Jennifer Chacon | Our History of Policing Migration Through the Criminal Justice System

Vigil for Haitian Immigrant Fighting Detention and Removal

Thursday, August 26, 2021

Female Afghani Robotics Team Makes it to Mexico

Circuit Judge Appointed by Ronald Reagan Finds that IJ and BIA “Nitpicked” in Adverse Credibility Determination in Asylum Case

Wednesday, August 25, 2021

From the Bookshelves: Our Grandfathers Were Braceros And We Too…

More on Supreme Court’s Order Keeping MPP in Place

Tuesday, August 24, 2021

Breaking News: SCOTUS Declines to Stay Injunction Preventing Rescission of MPP

Airbnb Offers to Host Afghan Refguees

Immigration Article of the Day: Unpacking the Rise in Crimmigration Cases at the Supreme Court by Philip Torrey

Monday, August 23, 2021

Disputes About Quotas for Social Security Judges Offer Insight On IJ Caseloads

EOIR Rolls Out “Dedicated Dockets” For Families Seeking Asylum

Supreme Court To Review Bond Hearings For Detained Immigrants

Why Mass Immigration Is the Key to American Renewal Our economy, politics, and culture all need the revitalization only immigrants can provide.

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

Thanks, Elizabeth! It’s interesting and satisfying that several Circuits, including the 2d and the 9th, are openly rejecting EOIR’s practice of “nit-picking” asylum applicants’ testimony in an attempt to deny meritorious applications. It’s all part of the “culture of denial” that continues to flourish at EOIR’s deportation assembly line under Garland.

Sadly, the Circuits haven’t yet had the guts to face the larger problem here — the EOIR system, as currently staffed with too many “Trump plants” as judges and a continuing lack of expertise and anti-asylum, anti-immigrant bias is clearly unconstitutional under the Fifth Amendment!

Indeed, some Circuit panels take judicial review seriously, others function as rubber stamps, and most individuals wronged in Immigration Court lack the lawyers and wherewithal to take their case to the Circuits. This means that inconsistent results and lack of consistently applied expertise at all levels of the Federal legal system just add to the inconsistencies and unfairness heaped on migrants in violation of the Due Process Clause. To date, no Circuit has been willing to act on the glaring constitutional defects at EOIR staring them in the face.

Unhappily, Congress also has failed to act on long-overdue legislation to create an independent, Article I Immigration Court. In the interim, it would be possible to ameliorate, if not entirely eliminate, these constitutional problems by replacing marginally qualified IJs and BIA judges with well-qualified progressive experts and then giving them independence to issue precedents and make necessary procedural and structural changes to restore some semblence of Due Process, quality control, fair procedures, and efficiency to this disgracefully dysfunctional, unnecessarily backlogged system. The private bar could be constructively involved in creating universal representation and sane docket management. Indeed experts recommended these very changes to Garland, only to be ignored in favor of the “same old, same old” incredible mess and gross indifference to both the rule of law and human life at EOIR!

Not surprisingly, a recently issued report from the Government Accountability Office (“GAO”) highlighted lack of “shareholder engagement” — something specifically discouraged by the Trump kakistocracy — as an endemic and continuing problem at EOIR. https://www.gao.gov/products/gao-21-104404

Shareholder engagement means having a meaningful dialogue with those practicing before the courts, and honestly considering their input in advance of promulgating new policies. So called “Town Halls” to announce unilaterally developed bureaucratic policies are the antithesis of this meaningful process. It’s no mystery why EOIR continues to founder and stumble under Garland.

🇺🇸Due Process Forever!

PWS

09-01-21

🤡🤮👎🏽BIA ERRORS, IRRATIONALITY, OIL’S FRIVOLOUS DEFENSE CONVERT “30 SECOND ADJUDICATION” FOR A COMPETENT JUDGE INTO TWO-YEAR ODESSY ENDING WITH VICTORY FOR RESPONDENT IN FIFTH CIRCUIT — Espinal-Lagos v. Garland (unpublished)

From Dan Kowalski at LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/unpub-ca5-u-visa-remand-victory-espinal-lagos-v-garland

Unpub. CA5 U Visa Remand Victory: i

Espinal-Lagos v. Garland

“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.”

[Hats off to Vinesh Patel and Francisco Alvillar!]

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

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.”

🇺🇸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.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-divisibility-remand-victory-wali-v-garland#

Unpub. CA5 Divisibility Remand Victory: Wali v. Garland

Wali v. Garland

“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 Garcia — 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.

https://www.ca2.uscourts.gov/decisions/isysquery/1f570ba8-e250-45d0-85fe-97520cd57537/11/doc/19-1943_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/1f570ba8-e250-45d0-85fe-97520cd57537/11/hilite/

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!

🇺🇸DPF!

PWS

08-27-21

🤮☠️ GARLAND’S EOIR STAR CHAMBERS CONTINUE TO GRIND OUT ANTI-ASYLUM TRAVESTIES! — Read What Passes For “Justice” In Garland’s Deadly Parody Of A Court System!

Garland’s “right hand man” on EOIR matters is eerily familiar, in a Himmleresque way! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Four Horsemen — BIA Asylum Panel In Action — At Garland’s BIA, a “Miller-trained and inspired” Asylum Panel can, and does, kill dozens of unarmed asylum seekers in a single day to “make quota.” Despite being thoroughly discredited for judicial use, Garland has inexplicably continued due-process-denying, corner-cutting, quality-killing “production quotas” for his assembly line worker/judges in Immigration Courts!
Albrecht Dürer, Public domain, via Wikimedia Commons.

Dan Kowalski reports for LexisNexis Immigration Community:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

CA9 on Credibility: Munyuh v. Garland

Munyuh v. Garland

“Ms. Munyuh’s case concerns us. From our reading of the record, the IJ seemed determined to pick every nit she could find. Besides erring procedurally, the IJ discounted probative evidence on flimsy grounds and displayed a dubious understanding of how rape survivors ought to act. Although we give great deference to the IJ as factfinder, substantial-evidence review does not require us to credit the credibility finding of an IJ who cherry-picks from—or misconstrues—the record to reach it. The IJ must consider the “totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). At the very least, the two legal errors we have identified warrant remand. The IJ erred by failing to give specific, cogent reasons for rejecting Ms. Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration that the police truck broke down after only four or five kilometers. And she further erred by discounting the supporting documentation without giving Ms. Munyuh adequate notice and opportunity to provide corroborative evidence. We therefore vacate the removal order and remand the case to the Board for further proceedings consistent with this opinion. PETITION GRANTED; VACATED and REMANDED.”

[Hats off to Ronald D. Richey!]

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

Congrats to Attorney Ronald D. Richey, who appeared before me many times at the Arlington Immigration Court.

Here’s a quote from the opinion by Senior Circuit Judge Danny Boggs, a Reagan appointee “on loan” from the 6th Cir., that shows the appallingly unprofessional performance of the Immigration Judge and the BIA in this “life or death” case:

On this point, the IJ made findings with which no reasonable factfinder could agree. She found Ms. Munyuh’s testimony that “the truck had traveled over two hours” to conflict with her earlier estimate that it had traveled “over an hour.” And she found Ms. Munyuh’s redirect testimony that “the truck [had] traveled approximately four to five hours before breaking down” to be “clearly in conflict with each of [Ms. Munyuh]’s prior estimations.”

But these time estimates are all consistent with each other. Indeed, assuming the truck really had traveled for four to five hours, Ms. Munyuh had no other choice but to give those answers. The IJ asked her if the truck had traveled more or less than an hour, to which Ms. Munyuh said more than an hour. Then the IJ asked whether the truck had traveled at least two hours, to which Ms. Munyuh answered in the affirmative.

No reasonable factfinder could find those two statements to conflict with Ms. Munyuh’s later testimony that the truck traveled for four to five hours. The IJ’s contrary finding is therefore unsupported by substantial evidence.

Wow! Is this what constituted “acceptable performance” when Judge Garland was on the D.C. Circuit? And, don’t forget, OIL actually defended this garbage product in May 2021, well after Garland took office and after experts had advised him to “clean house.”

The bad judges at EOIR whose lack of competence and/or bias unfairly condemn asylum seekers to persecution, torture and death, or all three, do NOT have life tenure and should NOT be on the Immigration Bench. Period! It’s not rocket science!

“No reasonable fact finder.” Isn’t that a problem in life or death cases? So-called “judges” who time after time stretch and misinterpret facts, ignore due process, and misapply basic asylum law to unfairly sentence asylum seekers to death! Why isn’t this grounds for removal from the bench? Or at least removing them from all asylum cases!

While Judge Boggs and his colleagues are rightfully “concerned” with EOIR’s performance in this case, Garland doesn’t appear to share those concerns. This is “business as usual” at Garland’s EOIR, just as it was when Stephen Miller was calling the shots! Obviously, Garland isn’t taking the human lives at stake here with even a modicum of seriousness. That’s totally unacceptable! Maybe Judge Boggs needs to pick up pen ✒️ and paper 📜 and express his outrage in writing to his former Circuit Court colleague, attaching an annotated copy of the garbage being turned out by his EOIR Star Chambers!

Star Chamber Justice — Just look the other way, it’s the Garland way! “Justice”
Star Chamber
Style

Also, don’t think that cases like this are an “aberration.” No, they aren’t! The only “aberration” is that this is one of a tiny sliver of injustices that was actually caught and corrected by the Article IIIs. How many unrepresented or under-represented individuals do you think that this judge and this BIA panel “railroad” in a week?

🏴‍☠️⚰️THEATER OF THE ABSURD: Incredibly, Garland & Mayorkas are now proposing to put this “Miller-Lite” EOIR infested with many incompetent, poorly trained, asylum-denying “judges,” with no credible leadership, totally lacking in professionalism and quality control, “in charge” of establishing precedents, insuring, and enforcing due process in their proposed “streamlined” asylum system! In other words, the solution for those who have repeatedly demonstrated an outrageous inability to conduct fair hearings and whose ignorance of asylum law and best practices is often stunning is to put them in charge of doing “paper reviews” of applications denied by Asylum Officers!

https://immigrationcourtside.com/2021/08/18/%F0%9F%97%BDcourtsides-instant-analysis-bidens-proposed-asylum-regs-advocates-beware-%E2%9A%A0%EF%B8%8F%E2%98%B9%EF%B8%8F-despite-a-potentially-workable-framework-adminis/

Good luck with that! Could there be a more insane proposal under current conditions? Making Stephen Miller the new “Asylum Czar” at EOIR? Perhaps, don’t be surprised!

Of course, in the nutsos world of Garland and Mayorkas, their fatally flawed proposal arguably would be a better than the current illegal and immoral use of Miller’s bogus Title 42 scheme to return legal asylum seekers to torture or death WITHOUT ANY PROCESS WHATSOEVER.

It’s simple. A complete “housecleaning” at EOIR, starting with the BIA, new progressive leadership and professional expert training at EOIR and the Asylum Office, new progressive asylum precedents and guidance, and an operating program for universal representation of asylum seekers are ABSOLUTE PREREQUISITES for fair and efficient regulatory reform of the asylum system! In the meantime, allow Asylum Officers to grant asylum to those who pass credible fear, but continue to give full Immigration Court hearings to any who can’t be granted. Get rid of Title 42 and start processing legal asylum seekers in an orderly fashion through ports of entry!

More than seven months into the Administration, Garland and Mayorkas could, and should, have had these needed progressive personnel, leadership, and structural changes in place, producing due process, and most important, actually saving lives! Instead, they have wasted time and squandered goodwill by continuing to run Stephen Miller’s White Nationalist system with Miller’s personnel in place! Simply incredible!

And, the bumbling, highly predictable weakness of the team of DOJ lawyers trying to defend the Administration’s few humanitarian immigration initiatives has become patently obvious. How can you expect lawyers who have spent the last four years misrepresenting asylum seekers as less than human and a threat to society suddenly start setting the record straight and effectively advocating for their human and legal rights? Obviously, they can’t! While EOIR is clearly the most glaringly dysfunctional part of DOJ, it’s obviously not the only problem and the only place Team Garland needed to (but didn’t) “clean house.”

I “get” that this isn’t Judge Bell’s, Ben Civiletti’s, or Janet Reno’s DOJ any more! But, remarkably, and tragically for the poor souls and their lawyers involved, Garland doesn’t!

🇺🇸Due Process Forever!

PWS

08-26-21

⚖️🗽👩‍⚖️ U.S. CIRCUIT JUDGE BEVERLY MARTIN 🌟 “OUTS” TRUMPY COLLEAGUES’ INTELLECTUAL DISHONESTY, BIA’S MALICIOUS INCOMPETENCE IN STINGING DISSENT FROM BOGUS ASYLUM DENIAL! — Garland’s Failure To “Pull Plug” On “Miller-Lite BIA” Continues To Cost Innocent Lives,☠️⚰️ Undermine American Justice, 🏴‍☠️ Outrage Human Rights Experts!🤮

https://media.ca11.uscourts.gov/opinions/pub/files/201913715.pdf

Murugan v. U.S. Atty Gen., 08-24-21, published

PANEL: MARTIN (Obama), NEWSOM (Trump), and BRANCH (Trump), Circuit Judges.

OPINION BY: Judge Branch

DISSENT: Judge Martin

KEY QUOTES FROM DISSENT:

The majority opinion gives no more consideration to Mr. Murugan’s claims

and individualized evidence than did the Board of Immigration Appeals and the Immigration Judge. That is to say not much consideration at all.

Mr. Murugan produced evidence that in October 2018, the Sri Lankan government changed drastically when the former president, who had been accused of authorizing war crimes and other human rights abuses against Tamils “blindsided” political observers and “sudden[ly]” returned as prime minister. Because Mr. Murugan is a member of the Tamil ethnic group, his attorney brought up these facts at the hearing before the IJ. But the IJ took no notice of this evidence, finding that Mr. Murugan’s country conditions evidence was outdated because it included materials related to the former president’s rule from 2014 to 2016. Mr. Murugan argued to the BIA that the IJ improperly disregarded these new facts, because they were relevant to what treatment the Tamils could expect from the newly returned prime minister. Even so, the BIA mechanically adopted the IJ’s decision that Mr. Murugan’s evidence was outdated. Mr. Murugan has now tried a third time, pointing out the significance of this evidence in his brief before this Court.

The majority opinion, like the IJ and the BIA, fails to engage with this

evidence. But I see it as substantial and highly probative evidence of a pattern or 19

USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 20 of 34

practice of government persecution of Tamils. Because I believe Mr. Murugan met his burden of showing he had a well-founded fear of future persecution based on the Sri Lankan government’s practice of persecuting Tamils, I would grant him relief on this claim.

. . . .

When this Court is tasked with reviewing a decision of the BIA, we must

actually review it, albeit with deference. This majority opinion may condemn Mr. Murugan to extreme persecution in Sri Lanka because it failed to actually examine the evidence of recent political changes in that country. When a dictator with a well-documented history of persecuting an ethnic group returns to power, surely

33

USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 34 of 34

our law does not require a member of that group wait to again experience persecution before he can claim asylum. Mr. Murugan has met his burden here. I respectfully dissent.

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

I encourage everyone to read Judge Martin’s complete dissent. By contrast, Judge Elizabeth Branch’s majority opinion is a vapid, disingenuous, piece of right-wing legal sophistry. As my colleague, Hon. “Sir Jeffrey” Chase observed, Branch was “Associate General Counsel for Rules and Legislation, U.S. Department of Homeland Security, in 2004-2005,” during the Bush II Administration.

Judge Martin will retire from the bench on September 30, 2021, thus giving President Biden a chance to appoint her replacement. So, this might be her last immigration opinion.

Judge Martin calls out her intellectually dishonest Trumpy colleagues and accurately characterizes BIA review as no review at all. (Actually, it’s worse than no review, because the BIA sometimes reverses correct IJ asylum grants and rewrites decisions to make it easier for OIL to defend bad denials.)

No matter how poorly they perform their judicial duties (the majority decision in this case certainly stands out as one of many low points in recent American jurisprudence) Trump’s and McConnell’s far righty Article IIIs enjoy lifetime sinecures.

But, EOIR “judges,” particularly after the last two decades of political interference with any semblance of “judicial independence,” enjoy no such exalted lifetime protection. As DOJ keeps pointing out, they are “mere Government attorneys” who can be reassigned to a wide range of attorney positions at the discretion of the Attorney General.

Thus Garland could, and should, remove and reassign poorly qualified judges and replace them with real, well-qualified expert progressive judges who understand asylum law, will fairly apply it, will issue some positive asylum precedents, and will control the “Asylum Deniers Club” operating in Immigration Courts throughout America. The dysfunction, institutionalized unfairness, and “worst practices,” are particularly acute after four years of poor judicial selections, a BIA packed with anti-asylum zealots, and defective training by biased, anti-asylum AGs under fatally flawed and discriminatory selection procedures

Judge Martin “gets it.” How come nobody on Team Garland does?

As we can see, from the Supremes to the “retail level” at the Immigration Courts, the consequences of poor right-wing judging fall most heavily on migrants, women, children, and people of color. Progressives could change that around at EOIR. But, Judge Garland doesn’t seem up to the job, as the opportunity for long overdue, systemic, life saving changes at EOIR continues to slip through his fingers!

But, I repeat myself, obviously to no avail.

🇺🇸Due Process Forever!

PWS

08-24-21

☠️⚰️👎🏽BIDEN ADMINISTRATION EMBRACES “NEW AMERICAN GULAG” — SUPREMES LIKELY TO HELP THEM OUT!🤮

https://lawprofessors.typepad.com/immigration/2021/08/supreme-court-to-review-bond-hearings-for-detained-immigrants.html

Dean Kevin Johnson posts on ImmigrationProf Blog:

Monday, August 23, 2021

Supreme Court To Review Bond Hearings For Detained Immigrants

By Immigration Prof

Share

The Supreme Court has decided a number of immigrant detention cases in recent years. Next Term brings another case. Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders. A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.

The consolidated cases are Garland. v. Gonzalez and Tae D. Johnson v. Guzman Chavez. Amy Howe on SCOTUSBlog offers some background on the cases her.

KJ

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

Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?

Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!

And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!

Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!

Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!

🇺🇸Due Process Forever! The “New American Gulag,” Never!

PWS

08-24-21

⚖️🧑🏽‍⚖️ EOIR WATCH: GOOD NEWS FROM FALLS CHURCH — “PRACTICAL, PROGRESSIVE SCHOLAR” JUDGE ELIZABETH YOUNG (SF) PROMOTED TO ASSISTANT CHIEF IMMIGRATION JUDGE!

Hon. Elizabeth Young — Honorable Elizabeth Young
Assistant Chief Immigration Judge

My good friend Professor Alberto Benitez @ GW Immigration Clinic reports:

Friends,

I’m pleased to share the news that our friend, colleague, and alum Elizabeth L. Young was appointed an Assistant Chief Immigration Judge in the Executive Office for Immigration Review of the US Department of Justice. While at GW Judge Young was a student in my Immigration Law I course, a student-attorney in the Immigration Clinic, and later interim director of the Immigration Clinic during my leave. The press release link follows.

https://www.justice.gov/eoir/office-of-the-chief-immigration-judge-bios

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

Many congrats to Assistant Chief Judge Young. Significantly, Judge Young has a 72% asylum grant rate that has remained consistent even during the Trump-era meltdown of due process and institution of the “asylum denial culture” and anti-asylum precedents and procedures in the Immigration Courts. That assault on justice, humanity, and the rule of law drove a once higher than 50% nationwide grant rate down to an artificially-low and intentionally unfair 33%.

As all NDPA warriors know, asylum adjudication at EOIR over the past four years has become a deadly national disgrace, as yet largely unaddressed by Judge Garland, whose dozens of inexplicably lackluster appointments to the Immigration Courts to date have drawn ire and fire from human rights experts.

Assistant Chief Judge Young immediately becomes one of the few “beacons of due process, best practices, and proper asylum adjudication” in a leadership position at EOIR. Hopefully, there will be more to follow! Make no mistake, EOIR is in “meltdown mode.”

🇺🇸Congrats again, and Due Process Forever!

PWS

08-23-21

⚖️COURTSIDE ANALYSIS: A “QUICKIE LOOK” INSIDE THE NUMBERS OF “DEDICATED DOCKET” — Sometimes The Numbers Don’t Tell You Much, Particularly When They Come From EOIR

By Paul Wickham Schmidt

Courtside Exclusive

August 20, 2021

TRAC IMMIGRATION just released the first statistical profile of the “Dedicated Asylum Docket” created by AG Garland and his subordinates without any coherent public explanation or plan in mind. Here they are:

https://trac.syr.edu/immigration/reports/657/

Stats wonks can check them out, and do their own analyses. As usual, given the haphazard nature and often questionable reliability of Government immigration statistics, it’s impossible to draw definitive conclusions.

But, here are a few things that jump out for me.

No criteria. How do you set up a program that deals with life or death decision-making without having transparent criteria about who gets placed on it and why? Easy, you work for Merrick Garland’s DOJ!

CBP in charge of dockets. Since there are no known criteria, and EOIR seems to have gone belly-up as usual, CBP, a law enforcement branch of DHS, gets to decide who is on this “Dedicated Docket.” CBP, of course, has a questionable record of competence and many issues including allegations of racism in its ranks swirling around it. It also has no known expertise or competence in establishing court dockets. Plus, letting a law enforcement agency with interests often adverse to asylum applicants, whose parent agency is a party to all Immigration Court proceedings, control dockets raises obvious ethical and conflict of interest issues.

Individuals, families, or cases? In its usual confusing manner, EOIR presents its stats in terms of individuals assigned to a docket. But, most (not necessarily all) “family units” are heard as a single “case.” According to TRAC, 4886 “individuals” on the Dedicated Docket (“DD”) represents 1,700 “family units.” That’s approximately “three individuals per family unit.” So, to get the approximate number of actual cases on a particular judge’s DD, we have to divide by three. Therefore, the number 600 assigned to a particular judge on the DD would actually represent 200 cases that require individual merits hearings. Got that? Confusing? Of course!

Who is Judge Francisco R. Pietro, and why? The short answer is that Judge Pietro is a 2019 appointee of GOP “Acting” AG Matt Whitaker, assigned to the NYC Docket and is too recent to have any “asylum grant/deny” statistics in the TRAC System. Remarkably, not to mention inexplicably, Judge Pietro has been assigned approximately 22% of the current Dedicated Docket (“DD”), or 1086 of the 4886 individuals covered by the report. (The rest of the DD is divided, very unequally, among 31 other IJs).

Dividing by 3, per above, the 1086 individuals assigned to Judge P represent about 395 “actual cases.”

Now, EOIR currently demands that it’s “Assembly Line Worker/Judges” complete 700 widgets (aka, cases) per year. It also expects judges assigned to the DD to strive to complete cases in 300 days, that is 10 months.

So, completing 395 asylum cases in 10 months would only leave Judge P another 2 months to complete the other 305 cases necessary for him to make his “quota.” Something has to give here, particularly if Judge P, like the rest of us, wants to take vacations and Federal Holidays off, prepare his cases, and occasionally gets sick. Who knows, he might even need some updated asylum training, although practical aspects like that don’t appear to be part of the equation at today’s “numbers driven” EOIR.

And, let’s not forget that Judge P is a recent appointment. Recent appointees are likely to be less efficient and less inclined to grant asylum than experienced judges, according to some studies.

Therefore, to meet his quotas, keep his bureaucratic “handlers” at DOJ happy, and hang onto his job, Judge P might be left with two choices:

Cut corners big time (a traditional EOIR “built to fail” approach) which means denying lots of due process; or
Reassign part of his docket to other judges, which leads to “Aimless Docket Shuffling” and building backlog.

Theoretically, Judge P could also choose to hear asylum cases with the care required to provide due process and quality decisions, without worrying about targets and quotas. This would be a more plausible option if he were actually an independent judicial official rather than the employee of a political agency.

Also, don’t kid yourself about the “operational consequences” of assigning Judge P and others to a DD! Even assuming that he had zero cases on his docket before being assigned to the DD (highly unlikely), his unavailability for the “general docket” will place extra burdens on his judicial colleagues that will almost certainly promote more Aimless Docket Reshuffling and more backlog. This, of course, will be true for most of the other 31 judges assigned to the DD, to differing degrees, depending on their DD caseload (which ranges from 1 to 712 “individuals” for the “other 31”). “Rearranging the deck chairs on the Titanic” like this actually prevents the crew from getting more passengers off in time to save lives.

Where are the lawyers coming from? The good news is that among the “top 10 DD Judges,” (comprising 79% of the DD), four are in NYC (2d Cir.), two in Newark (3d Cir.), one in San Diego (9th Cir.), one in SF (9th Cir.), one in LA (9th Cir.), and one in Boston (1st Cir.). There are active immigration bars, including pro bono bars, in all these locations. More over, none of these Circuits is notorious for systemically mistreating asylum seekers, and one, the 9th Cir., actually has some favorable case law, although probably less so since Trump’s far-right appointees have “rebalanced” that Circuit to the right.

Yet, it’s not clear from this statistical profile, nor has EOIR revealed, what, if any, agreements might be in place with local pro bono groups in these areas to achieve universal representation within a 300 day case-completion target, without disrupting the “regular” dockets. Nor is it shown how many of those 4886 individuals now on the DD already have lawyers. These are big unanswered questions.

Why Ecuador? Individuals from Ecuador make up over 40% of the DD, even though they comprise less than 10% of the “regular” (if there is such a thing) Immigration Court docket. Go figure!

How were these particular IJs and locations selected for the DD? No clue, which is disconcerting.

Other interesting information.

Here’s a chart that I constructed giving profiles of the “Top 10 DD Judges:”

DD Analysis

Overall, the majority (7) are recent GOP appointees from 2018-20. Of the seven with established asylum grant rates, two have grant rates significantly above the national average (Ling, Sagerman), two have grant rates significantly below the national average (Aina, Pope), and three (Auh, Sturia, Pressman) are relatively proximate to the national grant rate for the TRAC period (33.3). None sit within Circuits known for particular harshness to asylum seekers. None, to my limited knowledge, as far as stats are available, are members of the notorious “Asylum Deniers Club.”

So, we’ll see how it all plays out. Perhaps, over time, advocates will grow to “love and cherish” these DDs. More likely, they will eventually develop the same inconsistencies, inefficiencies, and maddening quirks that have accompanied almost all prior DOJ/EOIR “artificial gimmicks” intended to “speed up the treadmill” without meaningful advance input from experts of the private bar.

But, to me, it looks like the “same old” mismanaged, misguided, failing and flailing EOIR.

Should we expect better from the Biden Administration? You betcha! Will we get it? Probably not, without lots of litigation and hell-raising!

🇺🇸⚖️Due Process Forever!

PWS

08-19-21

🇺🇸🗽BREAKING: US JUDGE IN NEVADA NIXES FEDERAL ILLEGAL REENTRY LAW AS RACIST, UNCONSTITUTIONAL — U.S. v. Carrillo-Lopez (USD Judge Miranda Du) — “The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection,” Du wrote.

https://thenevadaindependent.com/article/nevada-judge-says-immigration-law-making-reentry-a-felony-is-unconstitutional-has-racist-origins

Michelle Rindels & Riley Snyder report for The Nevada Independent:

A federal judge in Nevada has ruled that a nearly 70-year-old section of law that makes it a felony to reenter the U.S. after being deported is unconstitutional, saying it was enacted with discriminatory intent against Latinos and therefore violates the Equal Protection Clause.

Judge Miranda Du issued an order on Wednesday dismissing a case against Gustavo [Carrillo]-Lopez, who was indicted last summer for being in the U.S. in spite of being deported in 1999 and 2012. It appears to be the first time a court has made such a decision, even though the statute known as Section 1326 has been under consideration by several district courts.

“Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus … the Court will grant the Motion,” Du wrote.

The case is a blow for the Department of Justice (DOJ), which initially filed the charge during the Trump administration — an era of hardline immigration policies — but has since switched hands to the Biden administration. Left-leaning groups have asserted that the Trump administration had “weaponized” Section 1326 and other decades-old immigration laws as part of their “zero tolerance” immigration strategy.

Julian Castro, a former Democratic presidential candidate and secretary of the Housing and Urban Development Administration, tweeted that “this law has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court.”

. . . .

The order notes that the law has a disparate impact on Latinos, noting that 87 percent of people apprehended at the border in 2010 were of Mexican descent. While the federal government argued those statistics are a function of geography and Mexico’s proximity to the U.S. rather than discrimination, Du said the argument was unpersuasive.

“The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection,” Du wrote.

. . . .

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

Read the complete article at the link,

Great decision! Notable for you “liberal artists” that historical analysis of racism and eugenics in America presented by Kelly Lytle Hernández, a history professor at UCLA, helped make the record and carry the day!

Just the kind of interdisciplinary interaction that permeates judging, particularly in immigration and human rights, and argues for more liberal arts grads with backgrounds in history, the humanities, linguistics, demographics, and social sciences on the Immigration Bench and the Article IIIs.

I’ve long criticized the “ahistorical” sometimes “anti-historical” approach taken by the BIA and other Federal Courts! For example, promoting the fiction that treaties, laws, ombudpersons, and even elections magically change centuries’ old animuses and make everything “hunky dory” for long-persecuted social, political, ethnic, religious, or racial groups.

Now, if we can only get the Article IIIs to do their job and hold the entire EOIR system, as currently operating, which has fatal racial bias, fairness, impartiality, expertise, and operational problems that make it a “walking violation of due process,” unconstititional, we could be on the way to the change America needs to bring an end to the present national disgrace in our Immigration Courts which is diminishing justice for everyone in America.

Nevertheless, while this decision is correct, and I’d like to share Julian Castro’s optimism, I’m inclined to doubt that the DOJ will forgo an appeal. Garland has taken a lackadaisical approach to both immigrant justice and its relationship to racial justice in America. He’s also failed to reign in, redirect, or replace DOJ attorneys defending Trump-era White Nationalist policies, procedures, and bad BIA decisions in court. See my post earlier today: https://immigrationcourtside.com/2021/08/18/the-gibson-report-08-16-21-compiled-by-elizabeth-gibson-esquire-ny-legal-assistance-group-garland-doj-continues-to-defend-millers-white-nationalist-agenda-in/

Additionally, despite life tenure, most Federal Courts have been reluctant to enforce the Constitution against the many Executive and Legislative abuses in the area of immigration and human rights. So, I would be disappointed, but not surprised, if this ruling is reversed on appeal.

Nevertheless, it’s an important step in exposing racism, connecting it with immigration, establishing truth, and fighting the Executive’s unconscionably bad and often illegal performance on immigration and race! While Garland might incorrectly think that immigration and human rights are “back burner” issues, by the time the NDPA is done with him they might well be issues that consume most of his time and irreparably damage his reputation. That’s why a wise Attorney General would be “leading the bandwagon for Article I” while immediately bringing in the progressive experts necessary to re-establish due process and efficiency at EOIR.

At any rate, this is exactly the kind of “creative disruption” that needs to happen until the system wakes up and makes the necessary progressive, due process, equal justice reforms long overdue at EOIR and other parts of the immigration bureaucracy.

🇺🇸⚖️🗽Due Process Forever!

PWS

08-18-21

Diaz-Rodriguez v. Garland, 9th Cir., 09-10-21, published

Here’s the opinion:

🇺🇸Due Process Forever!

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Jennifer Bendery reports for HuffPost:

🇺🇸Due Process Forever!

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Here’s “quick coverage” from Dan Kowalski over at LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Dan Kowalski reports on LexisNexis Immigration Community:

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View the latest edition of “Tea’s Coffee” featuring the amazing Tea Ivanovic @ Immigrant Foods:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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From Dan Kowalski at LexisNexis Immigration Community:

🇺🇸Due Process Forever!

ADDENDUM:

Unpub. CA5 Divisibility Remand Victory: Wali v. Garland

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? ☠️👎🏽🤮

🇺🇸DPF!

ADDENDUM #2

BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”

🇺🇸DPF!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Dean Kevin Johnson posts on ImmigrationProf Blog:

🇺🇸Due Process Forever! The “New American Gulag,” Never!

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My good friend Professor Alberto Benitez @ GW Immigration Clinic reports:

🇺🇸Congrats again, and Due Process Forever!

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By Paul Wickham Schmidt

Courtside Exclusive

August 20, 2021

🇺🇸⚖️Due Process Forever!

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Michelle Rindels & Riley Snyder report for The Nevada Independent:

🇺🇸⚖️🗽Due Process Forever!

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