"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Professor Mary Holper Associate Clinical Professor Director of the Immigration Clinic Associate Dean for Experiential Learning Boston College Law PHOTO: BC Law
Here’s the brief expertly prepared for us by NDPA All-Star Mary Holper and her team of student attorneys at Boston College Legal Services LAB Immigration Clinic:
As we argue, the BIA’s action here violated their own precedent in Matter of Morales-Morales, 28 I. & N. Dec. 714 (BIA 2023). As stated in our brief:
In Morales-Morales, the case in which the BIA first held that it could equitably toll a notice of appeal deadline, the BIA stated that the quintessential example of an extraordinary circumstance warranting equitable tolling is when “a party uses a guaranteed delivery service, and the service fails to fulfill its guarantee.” See Morales-Morales, 28 I. & N. Dec. at 717. When presented with exactly those facts, however—FedEx’s Priority Overnight service failed to deliver Ms. Diaz-Valdez’s notice of appeal on time, violating its guarantee—the BIA arbitrarily and capriciously refused to equitably toll the deadline.
One could well ask why Garland is spending Government time and resources defending the BIA’s erroneous and unjust actions. No wonder EOIR can’t help building more and more backlog — much of it through poor quality, anti-immigrant decision-making that causes unnecessary delays, confusion, gross inconsistencies, and contributes to the dreaded “Aimless Docket Reshuffling” — an endemic problem at EOIR!
Thanks again to Mary and her team for their outstanding help. Also, as pointed out in the intro to the brief, I joined in my individual capacity, NOT as a representative of the Round Table, Georgetown Law, or any other group or entity with which I am associated.
“This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. … [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion.”
[Hats off once again to superlitigator Raed Gonzalez!]
Thanks Raed for continuing to lead the fight for justice in “America’s worst ‘court’ system” in America’s most right-wing Circuit!
THIS “any reason to deny mentality” at EOIR, still being promoted by Garland’s BIA, combined with incredibly inept and unprofessional “administration” of EOIR by DOJ, is why the Immigration Court is broken and being crushed by unending backlogs, daily chaos, and a travesties of justice and sound government!
The Biden Administration pretends like the problem doesn’t exist and/or isn’t important enough to fix. But, I can assure you that they are WRONG! “Dead wrong” in some cases!
In addition to the public manifestations of dysfunction and unprofessionalism like this case, I get regular e-mails from NDPA members relating their own EOIR horror stories and venting their frustrations with the arrogant “above the fray/what me worry about humanity and those defending it” attitude of Garland and the rest of the Biden Administration responsible for the ongoing EOIR catastrophe!
I strongly doubt that Garland, Monaco, Gupta, Prelogar, and the rest of the DOJ “clueless crew” responsible for this indelible blot on American justice would last 60 days if required to practice exclusively before EOIR under the unfathomably horrible, due-process-denying conditions they have promoted and enabled over their past two years of horrible legal “leadership!” As aptly stated by one practitioner who recently contacted me:
“Things in Immigration Court will never be the same, but I at least expected attention to due process. Nope, IJ’s are more interested in getting the cases done.”
How is this appropriate conduct from a Dem Administration that claims to value human lives, racial justice, and the rule of law, but whose actions at EOIR (and elsewhere in immigration and human rights) say the exact opposite? Poorly functioning as EOIR was when I retired in 2016, the “anecdotal consensus” from practitioners seems to be that it’s measurably worse now under Garland’s inept leadership! “Come on man,” this just isn’t right!
After all this time (17 years since the BIA’s supposedly “final” order), this case is still not complete! It’s back at the BIA for yet another chance for them to deny on specious, legally incorrect grounds. One possibility is to misapply the “equitable tolling” concept mentioned by the 5th Circuit. The BIA has a long, disgraceful record of resisting and mis-applying equitable tolling.
Or, perhaps they will attempt to invoke their recent precedent in Matter of Chen, 28 I&N Dec. 676 (BIA 2023) https://www.justice.gov/eoir/page/file/1561876/download to deny reopening for “failing to make out a prima facie case for relief on the merits.”
Chen is a case where the the respondent moved to reopen to apply for NLP cancellation having attained the required 10 years of physical presence by reason of the BIA’s two wrong-headed precedents overruled by the Supremes in Pereira v. Sessions and Niz-Chavez v. Garland. Having twice screwed up in a way that created tens of thousands of potential remands and reopenings, someone not familiar with the BIA might have expected them to set forth clear, practical, generous criteria that would encourage IJ’s to consistently reopen cases where the respondent now had the qualifying time and relative(s) in light of the problems caused by the BIA itself. After all, that’s basically the direction in the BIA’s long-standing precedent Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) (reopening where the record“indicate[s] a reasonable likelihood of success on the merits, so as to make it worthwhile to develop the issues at a hearing”). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjWzY36pdn8AhVgF1kFHTcxChEQFnoECBkQAQ&url=https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3281.pdf&usg=AOvVaw2Ntzlp4MuxfupmjaDIn7i6
Since “exceptional and extremely unusual hardship” is inherently a fact-bound issue requiring a hearing to develop those facts, one might expect most cases to be routinely reopened.
But, the BIA took a different tack in Chen. While acknowledging that the hardship asserted by the respondent fell within the zone of those “recognized” by the BIA, they found “she has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”
While the BIA claimed to be “following” Matter of L-O-G-, they actually appear to have violated the teaching of that case that: “In considering a motion to reopen, the Board should not prejudge the merits of a case before the [respondent] has had an opportunity to prove the case.”(21 I&N Dec. at 419). That should particularly be true when the BIA itself has had a major role in creating the situation where reopening is sought.
By providing only a negative precedent (they didn’t even botherto “bookend” this with a precedential example of a grantable motion) to a system already suffering from a “culture of denial,” the BIA aggravated an long-festering problem. One can expect many IJ’s to view Chen as an “invitation to deny” the many Pereira/Niz Chavez motions to reopen in the offing for specious reasons or indeed for “any reason at all.” I expect talented NDPA warriors like Raed to make mincemeat out of the BIA’s wrong-headed attempt to minimize the “Pereira-induced damage” they have generated.
Like most of the misguided efforts of the 21st Century BIA, this attempt to cut corners, summarily deny, and NOT provide full due process and real hearings is likely to take more time and waste more resources than simply giving respondents the fair merits hearings to which they are legally entitled in the first place.But, that’s exactly what this Dem Administration has wrought at EOIR. “More of the same, instead of the promised change!”
Whatever the merits of Liadov were at the time it was issued, the Supreme Court has since made quite clear that only statutes that are set forth to be construed as jurisdictional are, in fact, jurisdictional. See, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21 (2017) (“‘[M]andatory and jurisdictional’ is erroneous and confounding terminology where, as here, the relevant time prescription is absent from the U.S. Code.”). Among others, the Second and Ninth Circuits have held, subsequent to Liadov, that the thirty-day BIA appeal filing rule is non-jurisdictional and subject to equitable tolling. See Attipoe v. Barr, 945 F.3d 76, 78–80 (2d Cir. 2019) (“Liadov is at odds with precedent in this Circuit and in others, as well with the Supreme Court’s repeated admonition not to treat claim-processing rules—such as the filing deadline in 8 C.F.R. § 1003.38—as jurisdictional.”); Irigoyen-Briones v. Holder, 644 F.3d 943, 946–48 (9th Cir. 2011). We agree with, and adopt, these courts’ reasoning. The BIA has the jurisdiction to hear the case if Boch-Saban establishes equitable tolling, an issue that the BIA should address in the first instance. For these reasons, we remand this case to the BIA to determine whether Boch-Saban proved entitlement to equitable tolling.
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Case started 17 years ago. R has been married to USC for 9 years. 5 years ago, the DHS agreed that the case should be terminated to allow the respondent to pursue an IV.
What if IJs routinely granted joint motions like this?
What if they were encouraged to do so?
What if the “best practice” in Immigration Court were to encourage maximum use of joint agreements by the parties?
What if the BIA actually encouraged and enforced “best practices?”
What if long residence and being eligible for legal immigration were consistently treated as“compelling equities.”
Wouldn’t those be “painless methods” for reducing the 1.7 million case backlog without gimmicks or stomping on anyone’s rights?
What if “practical scholar-litigators” like Stacy (a “complex litigation specialist”), who understand and have experienced the “dynamics” of Immigration Courts, were selected to become Immigration Judges and Appellate Immigration Judges?
Clear, concise, helpful, and correct. This is the type of guidance that should be in BIA precedents! It has the potential to “move” large number as of cases through Garland’s backlogged system.
It would also deter ill-advised “bogus oppositions” to meritorious motions such as the one woodenly advanced by DHS in this case. They do it because sometimes they are rewarded by lousy EOIR judging. At worst, it’s a crap shoot as EOIR currently functions (or, in too many cases, malfunctions).
Start consistently granting meritorious motions like this and the dilatory tactics from DHS will stop! In any system, particularly one as backlogged as this one, getting the Government to stop wasting judicial time and promoting bad results in a big step forward!
The prior Administration made an all-out effort to institutionalize bias and bad judgment. Garland has been far, far too slow in exposing and rooting out this bad behavior!
Just look around for some helpful, positive “precedential” guidance from the BIA on equitable tolling in the Fourth Circuit. Let me know if you find any!
So what aren’t cases like this precedents? Why doesGarland’s BIA instead keep publishing a steady stream of obtuse, poorly reasoned, anti-immigrant precedents written by Trump holdovers. These push IJs in the wrong direction, lead to prolonged wasteful litigation, reinforce the toxic “culture of denial,” create a “false narrative” that denies the merits of many respondents’ claims, and, worst of all, abrogate the BIA’s duty to insure fundamental fairness and due process for all!
Where’s the positive guidance on how to grant gender-based and family-based asylum cases, building on the restoration of A-R-C-G- to clear out meritorious old cases?
Where’s the positive guidance on how to “leverage” PD and administrative closing to reduce backlogs?
Where’s the positive precedent on expeditiously granting reopening in the many non-LPR cancellation cases mishandled by EOIR in light of Pereira and Niz-Chavez?
Where’s the common sense workable rule on nexus that reflects “mixed motive” and incorporates ordinary concepts of causation whilejettisoning the prior Administration’s bogus “look for any motivation that doesn’t qualify, no matter how attenuated or contrived” approach?
Where’s the reasonable bond guidance that would promote consistency and end the routine practice of setting absurdly high bonds in some Immigration Courts?
With the available talent to reshape the BIA into a body that would actually fulfill the vision of “through teamwork and innovation be the world’s best tribunal guaranteeing fairness and due process for all” why does Garland continue to screw immigrants and build more backlog by treating “Miller Lite Holdovers” as if they were life-tenured judges? They aren’t!
Although Garland appears to be in denial, “immigration judging” is some of the most consequential and important decision-making in the entire Federal Judicial System! Many, probably the majority, of those languishing in Garland’s out of control, largely self-created 1.6 million case EOIR backlog have strong claims to remain in a fair and efficient system. Yet, you would never know it by the indolent way Garland has handled the BIA mess (82,000 pending appeals) and his failure to speak out and lead by example on due process, fundamental fairness, racial justice, and human rights.
A new, functioning, expert, star-studded BIA, dedicated to due process, fundamental fairness, equal justice, human rights, and best practices, would be a great starting place! A year into an Administration that should know better, it’s long, long overdue!
Meanwhile, Elsy and other talented, motivated, committed members of the NDPA will continue to pound and expose Garland’s dysfunctional “courts” at all levels of the judicial system until we get the change that we need and that was (falsely) promised!
From the dissent by U.S. District Judge Edward R.Korman, EDNY, sitting by designation:
Goulart is not a sympathetic character. I can understand the desire to remove convicted burglars from this country. Indeed, Judge VanDyke questions why I have bothered to “champion” the cause of a convicted burglar. The answer should be obvious. The judicial oath, which was adopted in the Judiciary Act of 1789, requires us to “administer justice without respect to persons, and do equal right to the poor and to the rich.” See 1 Stat. 73, 76 (codified at 28 U.S.C. § 453). We take such an oath, which derives from biblical teachings, see Deuteronomy 1:17, so as not to be blinded by our like or dislike of the parties. We are not called to decide whether Goulart is a good person, but rather whether a person who has been banished from the United States without legal justification should be permitted to seek to return. The Supreme Court has held that the precise statute under which Goulart was deported violates the Constitution. Principles of law and equity require that he be permitted to move for reconsideration in this case. I respectfully dissent.
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Wow! Three opinions on a three-judge panel! Been there, done that! Reminds me of my long gone days on the “Schmidt BIA” when we all took our jobs seriously, even if it often didn’t result in “fake unanimity” (the watchword of today’s dysfunctional BIA).
For those who like to apply “ideological analysis” to Article III decisions, this one doesn’t “fit the mold:”
Judge Richard A. Paez (“majority” opinion) is a Clinton appointee.
Judge Lawrence VanDyke (concurring opinion) is a Trump appointee.
Judge Edward R. Korman (dissenting opinion) is a Reagan appointee.
That being said, the majority’s rationale that a deported respondent should have been a “legal clairvoyant,” predicting the eventual Supreme Court decision finding the statute under which he was convicted unconstitutional, is a piece of absurdist legal sophistry. Wonder what the result might have been if the panel majority didn’t look at him as an “alien bank robber,” not deserving of fair treatment or legal rights? Reminds me of what my former “boss” the late “Iron Mike” Inman used to yell at me during heated arguments at the “Legacy INS OGC:” “What did they teach you at that law school!”
“The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. We grant Kaur’s petition for review and remand for further proceedings consistent with this opinion.”
[Hats off to Douglas Jalaie!]
1st Calls Out Violation Of Regs, Incredibly Stupid Denial Of Reopening For Approved U Visa Petition Beneficiary Waiting For “Number:”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“Petitioner Carlos Antonio Granados Benitez seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of his motion to reopen his removal proceedings and to remand to the immigration judge (“IJ”) for further consideration in light of the fact that he had been placed on a waiting list by United States Citizenship and Immigration Services (“USCIS”) for a U-1 nonimmigrant visa (“U visa”) pursuant to the Victims of Trafficking and Violence Protection Act (“VTVPA”), Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U)). Because we find that the BIA abused its discretion, in that it failed to render a reasoned decision that accords with its own precedent and policies, and it further failed to consider the position of its sister agency Immigration and Customs Enforcement (“ICE”), we grant the petition. In so holding we join the views of the Seventh Circuit in Guerra Rocha v. Barr, 951 F.3d 848, 852- 54 (7th Cir. 2020).”
[Hats off to Paige Austin, with whom Philip L. Torrey, Make the Road New York, and the Harvard Law School Crimmigration Clinic were on brief, for petitioner, and Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig, LLP on brief for ASISTA Immigration Assistance, Asian Pacific Institute on Gender-Based Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, Safe Horizon, and Tahirih Justice Center, amici curiae!]
3rd “Perplexed” By BIA’s Ignorance Of “Equitable Tolling,” Own Authority:
“Hey, guys, ever hear of something called “equitable tolling?” “Nah, is it spelled D-E-N-I-E-D?” “Equitable TROLLING,” I’ve heard of that?”https://www.flickr.com/photos/rasputin243/ Creative Commons License
“Because Nkomo properly raised equitable tolling before the BIA, the BIA erred in failing to consider her request for equitable tolling on the merits. We remand for the Board to do so in the first instance.”
“The BIA’s suggestion that it does not have the authority to make decisions on equitable grounds is perplexing. The BIA has authority to equitably toll the deadline for motions to reopen the precise relief Nkomo sought.”
Demeaning rape victims! ☠️🤮👎🏻 So, what else is new @ EOIR? “Gonzo” Sessions 🦹🏿♂️ set the tone for anti-asylum, racially motivated misogyny in Matter of A-B- and “his judges” have taken it from there! (I repeat my oft-made observation: What kind of “due process” system lets a characters like Sessions, Whitaker, and Barr “own” judges? How would you like to be a woman on trial for her life before a “judge” selected, directed, and “owned” by the likes of these men with clear records of “applied contempt” for equal justice? Sessions, Whitaker, Barr, & Jeffrey Rosen are gone — but their legacy of bias and injustice lives on @ EOIR!)
One of my esteemed Round Table 🛡⚔️ colleagues summed up the latest set of outrageous miscarriages of justice from Falls Church:
All of these decisions demonstrate the degree of careful and detailed analysis that these cases require.And yet the BIA couldn’t keep staff attorneys after McHenry capped them at GS-13 (entry level), and keeps increasing the monthly quotas for BIA staff attorneys.Plus of course the Board Members themselves are now all these types who only review the decisions to make sure they end in the word “dismissed.”
If you were trying to create a recipe for disaster, you couldn’t have planned it better.
I heard the latter comment twice yesterday from immigration/human rights/due process experts on opposite sides of our country who observe and participate in the system at various levels.
To quote Justice Sotomayor’s recent dissent: “This is not justice.”
Historical Footnote:One of my first actions as BIA Chair in 1995 was to establish a “GS-15 Career Ladder” for all Attorney Advisors at the BIA. This made the BIA competitive with the rest of the DOJ.
It allowed us to attract and retain not only “top talent” coming from the “DOJ Honors Program” (how I got my first job at the BIA in 1973), but also outstanding career attorneys who wanted an opportunity to do research, writing, and “applied scholarship” that made a difference in individuals’ lives. Indeed, at various times the BIA has had on its staff former Senior Executives seeking a “change of focus” to a career that allowed them to do the things they liked best about the law.
One of them was a former SES colleague at the “Legacy INS” who found in transferring to a GS-15 BIA Attorney Advisor position a career satisfaction, fulfillment, and sense of meaningful contribution that person had been missing in INS management at that time.
Reducing the top grade for Attorney Advisors is not only professionally and personally demeaning, it also marks the entire organization as “second class” and shows just how stupid and incompetent (and, in recent history, overpaid) EOIR “management” has become! And, as pointed out in my colleague’s comments above, it has not only adversely affected careers but the human lives in the balance on the BIA’s docket.
As I understood my “mission” from then Attorney General Janet Reno in 1995, the BIA was supposed to be about “attracting the best and the brightest judges and supporting them with the best and brightest staff.” Essentially getting it to function like the “12th Circuit” was a description mentioned during my interview process for the Chair job.
Sadly, now, it has become an assembly line of expediency, injustice, shoddy legal work, mindless “corner cutting,” unprofessional behavior, and human misery.
To repeat my colleague’s comment: “If you were trying to create a recipe for disaster, you couldn’t have planned it better.”
All of these cases should have been resolved in the foreign national’s favor without ever getting to the Courts of Appeals! Bad judging, grossly incompetent administration, and lack of qualified, dynamic, judicial leadership from respected “practical scholars” costs lives, produces unacceptable and unfair inconsistencies, and clogs the Article III Courts with unnecessary litigation.
Indeed, the First Circuit’s decision in Granados basically reveals OIL’s “smorgasbord” of bogus arguments to uphold the BIA’s incorrect decision as “without merit” — actually frivolous! There are deep problems @ DOJ resulting from the ongoing corruption and disregard for ethics and professional leadership from the now-departed kakistocracy! They go far beyond the mess at EOIR!
Sure hope that Judge Garland, Vanita Gupta, and their incoming team @ DOJ have a comprehensive plan for replacing the BIA and reforming EOIR! The human beings suffering in this disgracefully inept and abusive “court system” and their courageous, long suffering attorneys are counting on you! Think of it this way: What if YOUR daughter were the rape victim demeaned, dehumanized, and denied justice by EOIR?
MAJORITY: BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.
DISSENT:THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined as to all but Part II–A–
SYLLABUS BY REPORTER OF DECISIONS:
The Immigration and Nationality Act provides for judicial review of a final Government order directing the removal of an alien from this country. 8 U. S. C. §1252(a). Section 1252(a)(2)(C) limits the scope of that review where the removal rests upon the fact that the alien has committed certain crimes. And §1252(a)(2)(D), the Limited Review Provision, says that in such instances courts may consider only “con- stitutional claims or questions of law.”
Petitioners Guerrero-Lasprilla and Ovalles, aliens who lived in the United States, committed drug crimes and were subsequently ordered removed (Guerrero-Lasprilla in 1998 and Ovalles in 2004). Neither filed a motion to reopen his removal proceedings “within 90 days of the date of entry of [the] final administrative order of removal.” §1229a(c)(7)(C)(i). Nonetheless, Guerrero-Lasprilla (in 2016) and Ovalles (in 2017) asked the Board of Immigration Appeals to reopen their removal proceedings, arguing that the 90-day time limit should be equitably tolled. Both petitioners, who had become eligible for dis- cretionary relief due to various judicial and Board decisions years after their removal, rested their claim for equitable tolling on Lugo- Resendez v. Lynch, 831 F. 3d 337, in which the Fifth Circuit had held that the 90-day time limit could be equitably tolled. The Board denied both petitioners’ requests, concluding, inter alia, that they had not demonstrated the requisite due diligence. The Fifth Circuit denied their requests for review, holding that, given the Limited Review Pro-
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*Together with No. 18–1015, Ovalles v. Barr, Attorney General, also on certiorari to the same court.
vision, it “lack[ed] jurisdiction” to review petitioners’ “factual” due dil- igence claims. Petitioners contend that whether the Board incorrectly applied the equitable tolling due diligence standard to the undisputed facts of their cases is a “question of law” that the Provision authorizes courts of appeals to consider.
Held: Because the Provision’s phrase “questions of law” includes the ap- plication of a legal standard to undisputed or established facts, the Fifth Circuit erred in holding that it had no jurisdiction to consider petitioners’ claims of due diligence for equitable tolling purposes. Pp. 3–13.
(a) Nothing in the statute’s language precludes the conclusion that Congress used the term “questions of law” to refer to the application of a legal standard to settled facts. Indeed, this Court has at times re- ferred to the question whether a given set of facts meets a particular legal standard as presenting a legal inquiry. See Neitzke v. Williams, 490 U. S. 319, 326 (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law”); Mitchell v. Forsyth, 472 U. S. 511, 528, n. 9 (“[T]he appealable issue is a purely legal one: whether the facts alleged . . . support a claim of violation of clearly established law”); cf. Nelson v. Montgomery Ward & Co., 312 U. S. 373, 376 (“The effect of admitted facts is a question of law”). That judicial usage indi- cates that the statutory term “questions of law” can reasonably encom- pass questions about whether settled facts satisfy a legal standard. The Court has sometimes referred to such a question as a “mixed ques- tion of law and fact.” See, e.g., U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___. And the Court has often used the phrase “mixed questions” in determining the proper standard for appellate re- view of a district, bankruptcy, or agency decision that applies a legal standard to underlying facts. But these cases present no such question involving the standard of review. And, in any event, nothing in those cases, nor in the language of the statute, suggests that the statutory phrase “questions of law” excludes the application of law to settled facts. Pp. 4–5.
(b) A longstanding presumption, the statutory context, and the stat- ute’s history all support the conclusion that the application of law to undisputed or established facts is a “questio[n] of law” within the meaning of §1252(a)(2)(D). Pp. 5–11.
A “well-settled” and “strong presumption,” McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496, 498, “favor[s] judicial review of administrative action,” Kucana v. Holder, 558 U. S. 233, 251. That presumption, which can only be overcome by “‘“clear and convincing evidence” ’ ” of congressional intent to preclude judicial review, Reno v. Catholic Social Services, Inc., 509 U. S. 43, 64, has consistently been applied to immigration statutes, Kucana, 558 U. S., at 251. And thereis no reason to make an exception here. Because the Court can rea- sonably interpret the statutory term “questions of law” to encompass the application of law to undisputed facts, and given that a contrary interpretation would result in a barrier to meaningful judicial review, the presumption indicates that “questions of law” does indeed include mixed questions. Pp. 6–7.
(2) The Limited Review Provision’s immediate statutory context belies the Government and the dissent’s claim that “questions of law” excludes the application of law to settled facts. The Provision is part of §1252, which also contains §1252(b)(9), the “zipper clause.” The zip- per clause is meant to “consolidate judicial review of immigration pro- ceedings into one action in the court of appeals.” INS v. St. Cyr, 533 U. S. 289, 313. The zipper clause’s language makes clear that Con- gress understood the statutory term “questions of law and fact,” to in- clude the application of law to facts. One interpretation of the zipper clause at the very least disproves the Government’s argument that Congress consistently uses a three-part typology, such that “questions of law” cannot include mixed questions. And another interpretation— that “questions of law” in the zipper clause includes mixed questions— directly supports the holding here and would give the term the same meaning in the zipper clause and the Limited Review Provision. Pp. 7–8.
(3) The Provision’s statutory history and relevant precedent also support this conclusion. The Provision was enacted in response to INS v. St. Cyr, in which the Court interpreted the predecessor of §1252(a)(2)(C) to permit habeas corpus review in order to avoid the serious constitutional questions that would arise from a contrary in- terpretation, 533 U. S., at 299–305, 314. In doing so, the Court sug- gested that the Constitution, at a minimum, protected the writ of ha- beas corpus “ ‘as it existed in 1789.’ ” Id., at 300–301. The Court then noted the kinds of review that were traditionally available in a habeas proceeding, which included “detentions based on errors of law, includ- ing the erroneous application or interpretation of statutes.” Id., at 302 (emphasis added). Congress took up the Court’s invitation to “provide an adequate substitute [for habeas review] through the courts of ap- peals,” id., at 314, n. 38. It made clear that the limits on judicial review in various §1252 provisions included habeas review, and it consoli- dated virtually all review of removal orders in one proceeding in the courts of appeals. Congress also added the Limited Review Provision, permitting review of “constitutional claims or questions of law.” Con- gress did so, the statutory history strongly suggests, because it sought an “adequate substitute” for habeas in view of St. Cyr’s guidance. If “questions of law” in the Provision does not include the misapplication of a legal standard to undisputed facts, then review would not includean element that St. Cyr said was traditionally reviewable in habeas. Lower court precedent citing St. Cyr and legislative history also sup- port this conclusion. Pp. 8–11.
(c) The Government’s additional arguments in favor of its contrary reading are unpersuasive. More than that, the Government’s inter- pretation is itself difficult to reconcile with the Provision’s basic pur- pose of providing an adequate substitute for habeas review. Pp. 11– 13.
Congrats to Chief Justice Roberts and Justices Gorsuch and Kavanaugh, admittedly frequent “pincushions” here at “Courtside” for often voting to uphold injustice and authoritarianism in immigration cases, for “seeing the light” and voting with the “forces of justice” on this one. Justices Thomas and Alito, perhaps predictably, continue to side with the “forces of darkness and oppression.”
As to the impact, just offhand I would hazard a guess that most Convention Against Torture (“CAT”) cases involving those whose crimes make them mandatorily ineligible for asylum and withholding involve the application of law (Is it “torture?” Will the government “acquiesce?” Is it “probable?”) to established facts (“Individuals are frequently beaten, starved, and raped in detention while the government looks the other way”). Immigration Judges, driven by inappropriate “production quotas,” officially sanctioned anti-migrant attitudes, andintentionally misleading “politicized precedents” where the migrant always loses no matter how strong their case, too often get these questions wrong. Sometimes, “dead wrong!”
Also, given the delays in Immigration Courts, most resulting from politically-motivated “Aimless Docket Reshuffling” within EOIR or just plain administrative incompetence under an overwhelming, largely self-created backlog, the issue of “equitable tolling” regularly comes up. Since the DOJ politicos and the OIL litigators “hate equitable tolling,” the BIA almost always strains to deny such claims no matter how well-documented and meritorious. Indeed, I suspect that the unavailability of effective judicial review by “real courts” has contributed to the disturbingly low quality of the BIA’s work in cases like this.
However welcome, and it certainly is, this is just a “limited fix” in what remains a blatantly unconstitutional and dysfunctional “court” system (where the courts are not actually fair and impartial tribunals) that threatens lives and American institutions every day it is allowed to continue to operate by the Supremes and the other Article IIIs, not to mention a feckless Congress.
EMELI KWASI ATTIPOE v. BARR, 2d. Cir., 12-19-19, published
PANEL: POOLER, LOHIER, and CARNEY, Circuit Judges.
OPINION BY: Judge Rosemary Pooler
KEY QUOTE:
Here, as in Iavorski, nothing in the text of Section 545(d)(2) itself, or in its
4 legislative history, indicates that Congress intended the appeal filing deadline to
5 be jurisdictional. To the contrary, the House Conference Report states that
6 “[u]nless the Attorney General finds reasonable evidence to the contrary, the
7 regulations must state that administrative appeals be made within 30 days, except
8 that the appellate body may, upon motion, extend such period up to 90 days, if good cause
9 is shown by the movant.” H.R. Rep. No. 101‐955 at 133 (emphasis added). The
10 legislative history thus indicates that Congress was amenable to the idea of
11 extending the time to file an appeal past the deadline upon a showing of good
12 And the BIA may, sua sponte, decide to accept late filings under the self‐
13 certification process. It could not accept any late filings—exceptional
14 circumstances or not—if the filing deadline truly was jurisdictional.
15 We therefore extend Iavorksi’s interpretation of Section 545(d)(1) to its
16 sister subsection, Section 545(d)(2), and hold that the BIA must consider the
17 principles of equitable tolling when an untimely appeal is filed and the petitioner
18 raises the issue, as Attipoe did here. We remand to the BIA to consider whether 15
1 equitable tolling allows consideration of Attipoe’s late‐filed appeal. The BIA is
2 free to develop the factors it will apply in considering equitable tolling, although
3 we note that it need not start from scratch. In Holland, the Supreme Court set out
4 standards for courts to apply in determining whether equitable tolling is
5 appropriate: (1) a showing that a petitioner “has been pursuing his rights
6 diligently, and (2) that some extraordinary circumstance stood in his way.” 560
7 S. at 649 (internal quotation marks omitted). And in the context of a late
8 motion to reopen, we have held that petitioners seeking equitable tolling must
9 demonstrate (1) that their constitutional rights to due process were violated by
10 the conduct of counsel; and (2) that they exercised due diligence during the
11 putative tolling period. Iavorski, 232 F.3d at 135; see also Rashid v. Mukasey, 533
12 3d 127, 132 (2d Cir. 2008) (requiring that a petitioner prove diligence during
13 “both the period of time before the ineffective assistance of counsel was or
14 should have been discovered and the period from that point until the motion to
15 reopen is filed”); Cekic v. I.N.S., 435 F.3d 167, 170 (2d Cir. 2006) (requiring that
16 petitioner “affirmatively demonstrate that he exercised reasonable due diligence
17 during the time period sought to be tolled”). After it determines what the
16
1 2 3 4 5 6 7 8
standards for equitable tolling under Section 1003.38 are, the BIA should determine whether Attipoe satisfies those standards.
CONCLUSION
For the reasons given above, the petition is granted, the BIA’s decision is vacated, and this matter remanded to the BIA for further proceedings consistent with this opinion.
An honest, competent Attorney General would make fixing the glaring legal, quality control, and Due Process problems with the BIA’s performance “job one.”
Instead, White Nationalist political hacks Sessions, Whitaker, and Barr have maliciously pushed the BIA and the Immigration Courts to rush more defective unprofessional work product out the door faster, thereby guaranteeing unconstitutional miscarriages of justice and numerous wrongful removals.
Improper, mindless, designed to fail “haste makes waste” gimmicks by the regime actually make the astounding 1.3 million case Immigration Court backlog much much worse, rather than addressing it in a rational and professional manner consistent with Due Process of law.
That’s especially true in a system where many individuals are improperly and unconstitutionally forced to appear without assistance of counsel and many others suffer from “underperformance” of counsel in a totally stressed and unfair system where the problems are overwhelmingly caused by our Government‘s “maliciously incompetent” performance, but the consequences fall almost exclusively and most heavily on the individual victims of U.S. Government malfeasance.
The idea the the BIA deserves “deference” as a fair, impartial, “expert” tribunal is beyond absurd. It’s a flat out abdication of legal duty by the Article III Courts of Appeals. When will they finally put a stop to this mockery of justice and remove the biased, unethical, and malicious DOJ prosecutor from improper and unconstitutional control over the Immigration “Courts?” How many illegal removals on their watch are too many for the complicit and privileged “life-tenured ones?”
What if it were themor their families suffering and being abused in this ongoing national disgrace that passes for a “court system?”
