"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.
Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.
He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.
At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.
“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.
. . . .
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.
But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.
“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.
Chase said the hearing appeared rushed, and he believes the case backlog played a role.
“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”
Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.
John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.
. . . .
*******************
Read Julie’s complete article at the link.
Hazaras are an historically persecuted group in Afghanistan whose already perilous situation has demonstrably worsened under the Taliban. See, e.g., https://www.ushmm.org/genocide-prevention/blog/urgent-action-needed-hazaras-in-afghanistan-under-attack. This case should have been a “slam dunk grant” under a proper application of precedents like Cardoza and Mogharrabi! Additionally, Hazara claims should be routinely grantable under the “pattern or practice of persecution” regulations that EOIR judges are supposed to apply (but seldom do).
No wonder this system builds incredible unnecessary backlogs when it botches the easy grants, wastes time on specious, disingenuous reasons for denial, and allows questionably-qualified judges to run roughshod over due process, the rule of law, and binding precedents.
Here’s additional commentary from “Sir Jeffrey:”
Thankfully, the amazing Steve Schulman at Akin Gump took on Mohamed’s case after his pro se hearing, and Human Rights First provided additional support.
(The Round Table was prepared to file an amicus brief on this one at the Fifth Circuit, but an agreement was reached to reopen the case at the IJ level before briefing was due.)
That the Government agreed to reopen this case basically “says it all” about the absurd result in the original hearing and the bogus “waiver” of appeal.
“Petitioner Srecko Pesikan argues that the Board of Immigration Appeals (“BIA”) erred in concluding that his 2018 Pennsylvania conviction for driving under the influence (“DUI”) of marijuana constituted an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act (“CSA”), thereby rendering him removable under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a) (“INA”). We agree and will grant his petition for review. … In sum, because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA. … For the foregoing reasons, we will grant Pesikan’s Petition for Review in case number 21-1262 and will reverse the order for removal.”
These are important cases with high stakes! They deserve expert analysis from expert judges.
Eliminating unnecessary Circuit reversals and remands like this would also help address the backlog-building, due-process-denying phenomenon of “Aimless Docket Reshuffling” at EOIR. Avoidable mistakes at the “retail level” are systemically costly to our justice system in more ways than one!
And, remember, that for every EOIR mistake that gets “caught” by the Article IIIs, dozens of these injustices probably go uncorrected! Circuit review is a luxury that isn’t available to most individuals who lose at the BIA level. Even here, Mr. Pesikan would have had no chance at the Circuit except for court-appointed pro bono counsel Stephen A. Fogdall and his team at Dillworth & Paxon, LLP, another luxury unavailable to litigants at the EOIR level.
Moreover, even when Circuit review does take place, the inappropriately deferential standards established by Congress allow (or even require) some Circuit panels to merely sweep glaring injustices under the rug without grappling with the overall constitutional implications of this shoddy, due–process-denying system. Why on earth would “deference” be given or review restricted over the “gang that can’t shoot straight” at EOIR?”
Would you give “deference” to these guys? Theatrical poster from Wikipedia
Some folks who should be applying for these jobs tell me they “couldn’t work with such an unfair law.” I say “poppycock.” To a large extent, the law and the unfair results are only as bad as EOIR judges choose make them.
But, it doesn’t have to be that way! For example, you can choose to:
Apply Cardoza-Fonseca, Mogharrabi, Kasinga, A-R-C-G-, and other precedents favorable to applicants fairly and robustly;
Honestly apply the presumption of future persecution set forth in 8 CFR 208.13 and actually put the burden on DHS to rebut it with evidence, not mere conjecture;
Carefully consider the possibility of a discretionary grant of asylum under the regulations (“so-called Chen grant”), even where the government rebuts the presumption of a well-founded fear;
Make realistic, practical, proper credibility determinations based on “the totality of the circumstances and all relevant factors;”
Require only “reasonably available” corroborating evidence;
Actually follow the legal principle that credible testimony, in an of itself, can be enough to grant relief;
Apply the “reasonableness of internal relocation” regulation set forth at 8 CFR 208.13(b)(3) honestly;
Fairly apply the properly generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza and described by the BIA in Mogharrabi to cases where there is no past persecution;
Incorporate the latest scholarship on “country conditions,” rather than “cherry picking” DOS Country Reports looking for ways to deny;
Use the latest body of scholarship on “best interests of the child” in deciding cancellation of removal for non-LPRs;
Schedule cases in a reasonable manner, in consultation with both counsel, to eliminate endemic “aimless docket reshuffling;”
Take measures to promote and facilitate representation of individuals, rather than throwing up roadblocks;
Make ICE counsel do their jobs, rather than doing it for them, particularly in cases where ICE unilaterally declines to appear at the merits hearing;
Use all of your practical skills and knowledge of the law and practice to solve problems and promote efficiency;
Consider all interpretations available to you, not just “defaulting” to the one offered by ICE;
Make careful, analytical, findings of fact, rather than just glossing over facts favorable to the individuals and over-emphasizing or fabricating the facts most favorable to DHS;
Make your “courtroom a classroom” where exceptional scholarship, due process, fundamental fairness, teamwork, practical solutions to human problems, and best practices are promoted and institutionalized.
You might well find, like I did, that being guided by Cardoza and Mogharrabi, sticking to your guns, providing full due process, and faithfully following the law actually leads to grants of relief in the majority of individual hearings. Notably, ICE seldom appealed my grants, and I was rarely reversed by the BIA, no matter who appealed.
I actually did better with my former BIA colleagues as an IJ than I had during my eight years of service on the Board. Indeed, as I sometimes quipped, as an IJ, I finally got that which my colleagues often denied me during my tenure as BIA Chair and an Appellate Judge/BIA Member: deference!
Worried about “life after EOIR!” Yes, there is such a thing!
And, a quick survey of our Round Table of Former Immigration Judges and BIA Members 🛡⚔️would show everything from partners and of counsel in law firms, professors and educators, major NGO supervisors and attorneys, community activists, consultants and coaches, to those, like me, who claim to be “fully retired and just enjoying life.” The Round Table actually has great credibility with the Federal Courts and the media because, unlike sitting judges and their “handlers,” we can actually speak truth to power outside the courtroom!
Whether you serve for a year or the rest of your career, what you learn as an EOIR judge if you pay attention, will give you a “leg up” and otherwise unobtainable practical knowledge of how America’s most important, yet least understood, court system actually works (or not)!
Every week, almost every day in fact, we see in Federal Court reversals and remands to EOIR and reports from practitioners about unpublished successes the fundamental difference that great litigation and equally “great judging” can make in reaching correct results!Making it happen every day, in every court, at the “retail level,” rather than counting on the uncertainties and limitations of Circuit review, will save lives and change the delivery of justice throughout America!
NDPAers, the “EOIR train” is leaving the station. 🚅 As a nation, we can’t afford the “best and the brightest” of today’s legal profession not to be on board! So, get those “many applications” in for those “many jobs” and let’s see if we can fix this “life or death system” from both the inside and the outside! We won’t know if we don’t try!
Hon. Dana Leigh Marks Retired U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Roundtable of Retired Immigration Judges
From the Los Angeles & San Francisco Daily Journal:
The just published proposed regulation is a big deal. It begins with over thirty pages of introductory information debunking the misguided justifications for the previous version of this rule [enjoined by a Federal Court]. Point by point the flawed logic, counterproductive encroachment on judicial discretion, and unnecessary micromanagement [an endemic EOIR problem] is called out.
It appears that EOIR is slowly correcting some of the mistakes of the recent past. What’s disappointing and of great concern: 1) Should and could have been “day one stuff;” 2) Judge Dana Marks was on the EOIR payroll on Jan. 20, 2021, and she or a qualified expert like her could and should have been put in charge and empowered to kick tail, take names, clean house, bring in top judicial and administrative talent, and implement long-overdue, still absent, EOIR reforms!
Better late than never? Perhaps, we’ll see. But, I’m not betting the farm on it!
EOIR to Host National Stakeholder Meeting for Law School Immigration Clinics
SUMMARY: The Executive Office for Immigration Review (EOIR) invites faculty, staff, and students from law school immigration clinics to attend a national stakeholder meeting focused on pro bono advocacy.
EOIR continues to build upon the guidance in EOIR Director Memorandum 22-01, Encouraging and Facilitating Pro Bono Legal Services, and welcomes the public’s input in evaluating our efforts to increase representation in immigration court proceedings. During the meeting, agency leadership will summarize feedback received during its April series of listening sessions, discuss steps EOIR has taken since those meetings, and share ideas for future initiatives as we collaborate to strengthen pro bono representation in immigration courts.
Following that discussion, agency leadership will welcome stakeholder input regarding ways to increase pro bono representation for Dedicated Dockets.
DATE: TIME: LOCATION:
Sept. 21, 2023
2 p.m. – 3 p.m. Eastern Time
Live via Webex – Meeting Registration
All media inquiries should be directed to the Communications and Legislative Affairs Division at pao.eoir@usdoj.gov.
We all know that EOIR is struggling. Unrepresented and under-represented individuals are basically “cannon fodder” for a hopelessly backlogged system where due process, fundamental fairness, and meticulous scholarship are too often afterthoughts, at best.
Insuring that individuals facing this dysfunctional system are well-represented is key to both saving lives and holding EOIR accountable. It also supports those judges at both levels who are fighting to restore due process, fundamental fairness, decisional excellence, and best practices to EOIR.
EOIR is widely known for its lack of transparency. Every nugget of information about the Immigration Court system’s practices, policies, objectives, and operating plans is therefore precious.
Also, giving EOIR honest feedback about some of the “real life” roadblocks and unnecessary challenges (like, for example, endemic Aimless Docket Reshuffling, arbitrary expedited dockets, and courts located inside prisons and other obscure, largely inaccessible, locations) is a critical chance to push back against mindless bureaucracy and suggest effective, practical solutions that enhance, rather than impede, due process.
Unfortunately, few of those shaping EOIR practices have recent experience actually trying to represent pro bono clients in this often “user unfriendly” and unnecessarily chaotic system. (It’s routinely described by experienced practitioners as the “Wild West of American Law.”) This is YOUR chance to learn and to inject a “dose of reality” into an agency that too often operates in a parallel universe.
Harvesting the “low hanging fruit” — the many clearly grantable asylum cases — has proved remarkably elusive for EOIR — under Administrations of both parties! IMAGE: Creative Commons 2.0
That Mexico is one of the most dangerous countries in the world for journalists is hardly “rocket science.” 🚀 See, e.g.,https://www.nbcnews.com/news/latino/annihilating-journalism-mexican-reporters-work-attacks-killings-rcna14196. Yet, an EOIR Judge was allowed to twice wrongfully deny this “slam dunk” case —on specious grounds such as making the absurd finding that Mr. Gutierrez was not a journalist — over six years before the BIA finally ended the farce!🤡
So, let’s put this into a real world context. 15 years, two wrong IJ decisions, and two trips to the BIA to complete (actually it’s still not complete, because it was remanded for “background checks,” but that’s another saga), a case that should have taken a well-qualified Immigration Judge about 15 minutes to grant. So, what chance is there that without major leadership, personnel, structural, and substantive changes, EOIR could do “justice” on asylum cases put on an ”expedited docket.” Slim and none, as actual experience shows!
The necessary first step toward meaningful immigration reform is a complete overhaul of EOIR. Without that readily achievable administrative action, no attempt at legislative or regulatory reform can succeed. It’s not rocket science! 🚀 Just common sense, moral courage, and “good government.”
Mob chatter: “Hey, anyone here know what an ARCG is?” “No clue.” “Some kind of boat?” “Maybe we should ask Noah.” “Don’t bother. The only rule we follow around here is ‘When in doubt, throw ‘em out!’” “Isn’t that what the UN Handbook says, that ‘giving the benefit of the doubt’ means to ‘doubt that any benefit will ever be given?’” “Yup, sounds right to me!” “I don’t understand it. We’re overtly hostile to asylum seekers and their lawyers, we’ve tilted the playing field against them, yet they still come! Why?” “Detain, discourage, deny, deport, deter, that’s our mission!” “Where due process, fundamental fairness, and best practices go to die!” “Precedents? We only follow the ones unfavorable to respondents!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
From: Ted Murphy
Sent: Thursday, September 14, 2023 10:09 AM
To: AILA Philadelphia List
Cc: Kaley Miller-Schaeffer
Subject: 3rd Circuit Precedent – PSG Honduras A-R-C-G-
Importance: High
Friends,
Please see the attached precedent decision from the 3rd Circuit today. While the first 16 pages of the 21 page decision focus on CIMT issues, the final 4 pages are worth reading on PSG similar to A-R-C-G- that the BIA ignored.
Here, on the other hand, the BIA did not adhere to
Matter of A-R-C-G-’s requirement to examine Avila’s PSG
within the context of the specific country conditions in
Honduras. The BIA rejected Avila’s PSG for lack of
particularity without considering evidence in the record about
“widespread and systemic violence” against Honduran women,
“inconsistent legislation implementation, gender
discrimination within the justice system, and lack of access to
services.”109 Evidence in the record, including that “[l]ess than
one in five cases of femicide are investigated,… and the
average rate of impunity for sexual violence and femicide is
approximately 95%,” may have been relevant in examining
whether Avila’s proposed PSG was cognizable.110 Just as the
cultural attitudes toward gender were relevant in Matter of A-
R-C-G-, evidence in the record as to the “machismo culture” in
Honduras may be relevant to assessing whether Avila has a
cognizable PSG.111
Moreover, in Matter of A-R-C-G-, DHS conceded that
the proposed group “married women in Guatemala who are
unable to leave their relationship” was sufficient for a PSG
asylum claim.112 Given the similarity between that social group
and “Honduran women in a domestic relationship where the
male believes that women are to live under male domination,”
we must remand for the BIA to provide clarification as to its
application of Matter of A-R-C-G-, and to determine whether
Avila’s proposed PSG is cognizable in light of the specific
country conditions
.
We must also remand for the BIA to consider whether
Avila demonstrated a well-founded fear of persecution on
account of her PSG. The BIA determined that Avila’s PSG did
not “exist independently” of the harm alleged, as required
under Matter of M-E-V-G-113 and Matter of W-G-R-.114 Matter
of M-E-V-G- cites to this Court’s prior precedent in Lukwago
v. Ashcroft,115 which states that a PSG “must exist
independently of the persecution suffered by the applicant for
asylum.”116 However, Lukwago makes clear that in
determining whether a PSG exists independently of the
persecution suffered, the BIA must consider the PSG in the
context both of “past persecution” and a “well-founded fear of
persecution.”117 Here, the BIA did not consider whether Avila
had demonstrated that she had a well-founded fear of
persecution based on her past experiences of abuse and sexual
violence. Accordingly, we will remand for the BIA to consider,
in addition to whether Avila has suffered past persecution on
account of her PSG, whether she has demonstrated a well-
founded fear of future persecution.
In conclusion, on remand, the BIA should (1) clarify,
given the Government’s concession in Matter of A-R-C-G- that
the proposed group was sufficient for a PSG asylum claim, its
application of Matter of A-R-C-G- to the present case, and
consider Avila’s PSG in the context of evidence presented
about the country conditions in Honduras and (2) provide
guidance in applying both Matter of A-R-C-G- and Matter of
M-E-V-G- with respect to past persecution and a well-founded
fear of future persecution on account of membership in a PSG
Case was argued by Attorney Kaley Miller-Schaeffer.
Once again, the BIA fails to follow its own precedent favorable to the respondent! Yet, in a Dem Administration they get away with mocking the rule of law in life or death cases, in a “court system” that the Dems “own.” Why?
WHO applies precedents and rules can be as important as the precedents and rules themselves! Failure to properly and uniformly apply legal rules that favor asylum seekers has become a chronic problem at EOIR. It’s one that Garland has yet to effectively and comprehensively address!
Many congrats to Kaley Miller-Schaefer and Murphy Law!
Kaley Miller-Schaefer ESQ Partner Murphy Law PHOTO: Linkedin
“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”
PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”
HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”
This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?
This e-mail exchange among experts says it all about Cabrera-Fernandez:
Expert 1: Wow – they never miss a chance to hurt noncitizens, do they?
Expert 2: The cruelty is the point.
“The Cruelty Is The Point” IMAGE: Amazon.com
With an available interpretation that would have allowed regularization of status, what purpose is served by devising a way to keep these otherwise qualified Cubans in limbo? Why would the DHS appeal a decision like this? Why would the BIA reward them for pursuing a result that is 1) inhumane, 2) undesirable, and 3) entirely avoidable with a little creativity and common sense (see, IJ in this case)?
No wonder we have backlogs everywhere an a dysfunctional system that nobody in charge seems interested in fixing — even when fixes are available and basically “cost free?” Better leaders and more enlightened decision-makers would be helpful.
Rae Ann Varona Legal Reporter Law360 PHOTO: Linkedin
Dan Kowalski over at LexisNexis Immigration Community helpfully forwarded the pdf’s of Rae Ann’s article and the three briefs. You can access them here:
Our Round Table, with the help of some of the greatest litigators and law firms out there, continues to provide key support for the NDPA and timely expertise to the Federal Courts and father Executive on all levels!
A federal judge ordered Texas to remove floating barriers in the Rio Grande and barred the state from building new or placing additional buoys in the river, according to a Wednesday court filing, marking a victory for the Biden administration.
Judge David Alan Ezra ordered Texas to take down the barriers by September 15 at its own expense.
The border buoys have been a hot button immigration issue since they were deployed in the Rio Grande as part of Gov. Greg Abbott’s border security initiative known as Operation Lone Star. The Justice Department had sued the state of Texas in July claiming that the buoys were installed unlawfully and asking the judge to force the state to remove them.
In the lawsuit, filed in US District Court in the Western District of Texas, the Justice Department alleged that Texas and Abbott violated the Rivers and Harbors Appropriation Act by building a structure in US water without permission from United States Army Corps of Engineers and sought an injunction to bar Texas from building additional barriers in the river. The Republican governor, meanwhile, has argued the buoys are intended to deter migrants from crossing into the state from Mexico.
Texas swiftly appealed the judge’s order.
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
*********************************
Read the rest of Priscilla’s report at the link.
Who knows how this will play out in the 5th Circuit and the Supremes, given the composition of those courts. But, at least for a day, Judge Ezra has brought some common sense and the rule of law to bear on out of control grandstanding Texas “Governor” Greg Abbott.
We should also remember that the vast majority of those whom Abbott and the nativists bogusly call “invaders” seek only to turn themselves in to U.S. authorities so they can exercise their clear legal rights to apply for asylum — rights that attach regardless of status or manner of entering the U.S. (Rights that also have improperly been diminished and impeded by the Biden Administration’s ill-advised asylum regulations, currently under legal challenge).
If successful (under a legal system intentionally rigged against them), these so-called “invaders” will use their skills and work ethic to expand our economy and help Americans prosper while saving their lives and those of their families. To anybody other than Abbott and other White Nationalists, that sounds like a potential “win-win” that could and should be “leveraged” for everyone’s benefit!
Judge Ezra’s opinion in the aptly-named U.S. v. Abbottcan be found here:
“Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found Petitioner not credible and denied her application, relying in part on inconsistencies between Petitioner’s statements during a border interview and later testimony regarding her fear of persecution. However, the immigration judge failed to consider various factors that may have affected the reliability of the border interview record. Petitioner claims that she was frightened during the interview because a border patrol officer hit her and yelled at her upon her arrival to the United States. Petitioner may also have been reluctant to reveal information about persecution because authorities in her home country were allegedly unwilling to help her due to her indigenous status. Moreover, the questions asked during Petitioner’s border interview generally were not designed to elicit the details of an asylum claim. In Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), we cautioned immigration judges to consider these factors and others before relying on a border interview to find an asylum applicant not credible. Consistent with Ramsameachire and subsequent precedent, we hold that immigration judges are required to take such precautions, provided the record indicates that the Ramsameachire factors may be implicated. Accordingly, we GRANT the petition for review in part, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”
“Jose Luis Flores-Vasquez (“Flores-Vasquez”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal. He argues that the BIA erred in finding that his prior menacing conviction under Oregon Revised Statute § 163.190 constitutes a crime involving moral turpitude (“CIMT”), rendering him ineligible for cancellation of removal. We agree and grant this portion of the petition. … Here, … Matter of J-G-P- does not purport to reassess longstanding BIA and Ninth Circuit precedent concerning simple assault offenses, and because it misapplied that precedent, its conclusion is unreasonable. See id. PETITION FOR REVIEW GRANTED; REMANDED.”
This brief represents the views of two groups of amici curiae. See Corporate
Disclosure Statement for names of amici curiae. The first group is comprised of thirty-two immigration law scholars and clinical professors. These amici teach immigration law and/or provide clinical instruction in law school clinics that provide representation to asylum seekers and noncitizens seeking relief under 8 U.S.C. § 1231 and 8 U.S.C § 1158. As such, amici are knowledgeable of the particular legal requirements of 8 U.S.C. § 1231 and 8 U.S.C § 1158 and have a special interest in the proper administration and interpretation of the nation’s immigration laws, particularly asylum and withholding of removal.
The second group is comprised of forty-one former immigration judges (“IJs”) and Board of Immigration Appeals (“BIA”) members who have collectively presided over thousands of removal proceedings and have interest in this case based on their many years of dedicated service administering the immigration laws of the United States. Based on this experience, amici believe that withholding of removal
1 Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici notes that all parties have consented to the filing of this brief.
Furthermore, pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici further certifies that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparation or submission of the brief, and no person, other than amici, their members, or counsel has contributed money intended to fund preparing or submitting the brief.
is the means whereby Congress provided for the United States to meet its international treaty obligation of “nonrefoulement” under Article 33 of the Refugee Convention. Withholding of removal is a vital legal tool upon which IJs rely to ensure that noncitizens appearing before them are not removed to countries for which they have proven it to be more likely than not that they have experienced (or will experience) persecution on account of a protected ground — an extremely high burden to meet. This relief is mandatory where the noncitizen’s burden of proof is met and does not lead to permanent status or derivative status for immediate family members, in contrast to asylum, which is a discretionary form of relief that grants a permanent status and derivative status for immediate family members.
Amici contend that the more lenient “a reason” standard, as applied to the nexus between the protected ground and the persecution for withholding (as opposed to the “at least one central reason” standard for asylum) requires IJs to order withholding in cases where evidence of nexus may be insufficient for a discretionary grant of asylum. Such an interpretation would provide greater protection from violating the international treaty obligation of nonrefoulement. The instant case, where Petitioner is ineligible for asylum but may be protected from severe future persecution by withholding of removal, presents exactly the context in which Congress intended for the lesser “a reason” nexus standard to apply. Addressing this question here provides an opportunity for this Court to affirm Congress’s clear
intent, expressed in the statutory language of 8 U.S.C. § 1231(b)(3)(C), to establish protection against nonrefoulement for this noncitizen and many others who, for any number of reasons, are ineligible for the discretionary relief of asylum.
“On Petition for Review of a Final Order of the Board of Immigration Appeals. (Agency No. A209-343-065). Immigration Judge: David Cheng. … As for Quinteros’s Convention Against Torture claim, our precedent requires the agency to follow certain steps. Yet neither the judge nor the Board did so. … Here, neither the immigration judge nor the Board followed our instructions. … Those procedural failures infected the agency’s decisions. Neither the immigration judge nor the Board considered a separate death threat and beatings that Quinteros got from gang members. In gauging the likelihood and severity of future harm, the agency should have considered the gang’s death threat too. See Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 112 n.5 (3d Cir. 2020). So we will grant the petition as to Quinteros’s Convention Against Torture claim, vacate the Board’s order, and remand.”
Gee whiz, applying and following Circuit precedent seems like “Immigration Judging 101!” Yet two levels of supposedly “expert” EOIR judges blew it — badly! Fortunately, this respondent was represented by experienced Federal litigator Thomas E. Moseley, who is never afraid to go to the Article IIIs to correct EOIR’s errors.
But, most respondents aren’t so lucky. So, it’s likely that for every defective adjudication “outed” by a Circuit, multiple, potentially deadly or at least life changing, mistakes go uncorrected. Worse yet, some are even “institutionalized!” Seems like a “heck of a way to run the railway,” particularly for a former Article III Judge who was once nominated for the Supremes!
Unforced error after unforced error in life or death cases from Garland’s substandard “courts!” Would brain surgeons 🤯☠️ who kept on screwing up critical operations still be “on staff.” I doubt it! So, why aren’t “DOJ attorneys” carrying out quasi-judicial functions subject to some quality controls? In theory, that’s supposed to be the BIA’s function. But, the BIA has firmly established itself as “part of the problem, NOT the solution!”
Congrats to my long-time friend and former “Legacy INS” colleague Tom Moseley. As a former INS Special Assistant U.S. Attorney in the SDNY (in the time of “Crazy Rudy”) during the “Inman/Schmidt Era” at INS General Counsel, Tom has also seen both sides of the system!
“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”
Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:
Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.
H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.
Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.
The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.
Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!
