Tag: Gutierrez-Brizuela v. Lynch

SUPREMES TAKE ON “STOP TIME” ISSUE FOR CANCELLATION OF REMOVAL – TO RESOLVE “CIRCUIT SPLIT” — COULD AFFECT MANY THOUSANDS OF REMOVAL CASES – PEREIRA V. SESSIONS!

Here’s what SCOTUS Blog has to say about the issue:

“Issue: Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”

Here’s a link to the SCOTUS Blog material on Cir:

http://www.scotusblog.com/case-files/cases/pereira-v-sessions/

Here’s a link to the First Circuit’s decision in Pereira v. Sessions, written by Judge Lipez which upheld the BIA’s ruling under so-called “Chevron deference:”

http://media.ca1.uscourts.gov/pdf.opinions/16-1033P-01A.pdf

And, here’s a “key quote” from Judge Lipez’s decision in Pereira that explains the issue a little more detail:

“The Immigration and Nationality Act (“INA”) gives the Attorney General discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. 8 U.S.C. § 1229b(b)(1). Under the “stop-time” rule, the alien’s period of continuous physical presence ends “when the alien is served a notice to appear under section 1229(a)” of the INA. Id. § 1229b(d)(1). In this case, we must decide whether a notice to appear that does not contain the date and time of the alien’s initial hearing is nonetheless effective to end the alien’s period of continuous physical presence. The Board of Immigration Appeals (“BIA”) answered this question affirmatively in Matter of Camarillo, 25 I. & N. Dec. 644 (B.I.A. 2011). The BIA applied that rule in this case.

Joining the majority of circuit courts to address this issue, we conclude that the BIA’s decision in Camarillo is entitled to Chevron deference. We deny the petition for review.”

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So, with the 1st Circuit joining the 2nd, 4th, 6th, 7th, and 9th Circuits in upholding Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011); only the 3rd Circuit rejecting the BIA’s interpretation (Orozco- Velasquez v. Att’y Gen. United States, 817 F.3d 78, 81-82 (3d Cir. 2016)); and what is generally perceived as a “conservative leaning” Supreme Court, looks like a “slam dunk” for the Government, right? Not so fast!

On a question of statutory interpretation like this, I could definitely see some of the more conservative “strict constructionist” Justices teaming up with the “liberals” to reject the BIA’s interpretation by invoking the “plain meaning” rule of statutory construction to overcome “Chevron deference.” Indeed, quite interestingly, as I have noted in prior blogs, Justice Neil Gorsuch was an outspoken critic of Chevron while on the Tenth Circuit. Read his opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) if you have any doubts! Here’s a link to that opinion: https://www.ca10.uscourts.gov/opinions/14/14-9585.pdf

So, I wouldn’t assume at this point that Justice Gorsuch will be a “shill” or “pushover” for the Administration on all immigration issues, even if Trump thinks that’s the type of “loyalty” all his judicial appointments owe him. Actually, the oath of office that Federal Judges take requires them to uphold the Constitution of the United States, not the views and positions of President Trump, Attorney General Jeff Sessions, DHS Secretary Kristjen Nielsen, or anybody else of any importance whatsoever. That’s what real “judicial independence” (as opposed to the “captive” Immigration Judiciary) is all about!

And, you might ask what’s the “big deal” about this case? After all, even if the Supremes agree with the petitioner and the Third Circuit that the notice was defective, the BIA and DHS could easily cure the “problem” simply by specifying a “time, place, and date” for the Immigration Court hearing on the original Notice to Appear. Indeed, when I joined the Arlington Immigration Court in 2003 such a system, called “Interactive Scheduling” was in effect. But, like much else at EOIR it appears to have run into problems and been largely abandoned as the dockets mushroomed out of control. Many (not all) things about the administration of the Immigration Courts actually moved backward during my 13 year tenure in Arlington.

But, if the original Notice to Appear were held to be ineffective, then it would not serve to “Stop Time” for the 10 year period of “continuous physical presence” required to apply for the relief of “Cancellation of Removal.” This, in turn, would make thousands of individuals now in Immigration Court proceedings, perhaps tens of thousands, eligible to apply for Cancellation. And, it likely would require the reopening of thousands of already completed cases where the respondent was denied Cancellation of Removal based solely on the “Stop Time” rule. So, that’s why it’s worth the Supremes’ time to resolve this conflict among the lower Federal Courts.

PWS

01-13-18

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BREAKING: President Trump Nominates 10th Circuit Judge Neil Gorsuch To Supremes — Read My Short Article “Judge Gorsuch Understands — Why It’s High Time For Chevron ‘Judicial Task Avoidance’ To Go”

http://www.huffingtonpost.com/entry/neil-gorsuch-supreme-court_us_5890c0e8e4b0522c7d3d592a?ua16n5hws8p6xswcdi&

HuffPost writes:

“Against that backdrop, questions about the court’s independence and role as a check on the executive branch are sure to dominate Gorsuch’s confirmation hearing, which will find Democrats on the offensive and under increasing pressure to block or deny the nomination outright ― much like Republicans obstructed the nomination of Merrick Garland, the highly respected appeals court judge President Barack Obama chose to fill the Supreme Court vacancy.

If confirmed, Gorsuch, 49, would bring to the bench a conservative record that will be forever measured against that of Scalia, a towering firebrand of legal conservatism whose death last year forced Trump to issue not one but two lists of potential nominees he’d choose if elected. The lists ― largely assembled with the help of conservative brain trusts ― helped assuage supporters’ fears that Trump might not nominate judges who are conservative enough.

Conservatives need not worry. Gorsuch is an intellectual rising star ― a well-spoken and eloquent writer who enraptures Republican and Libertarian lawyers and law students who come to see him at conferences organized by the Federalist Society, a group that helped Trump put together his Supreme Court wish list.

. . . .

“One key concurring [sic] opinion that earned Gorsuch high praise from conservative commentators was in an immigration case decided last year in which Gorsuch staked out a strong position against the administrative state ― and the way the Supreme Court has made it easier for agencies to interpret laws that judges are better suited to interpret.

“That’s a problem for the judiciary,” Gorsuch wrote in Gutierrez-Brizuela v. Lynch. “And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”

Administrative law isn’t exactly an area activists will rally around, but the high court hears a number of cases in which agencies are front and center ― whether the controversy is about transgender rights, health care, the environment or immigration. In that regard, Gorsuch could be skeptical of how the Trump administration ― and future administrations ― reads the law as it exists on the books.” [emphasis added]

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Judge Gorsuch Understands — Why It’s High Time For Chevron “Judicial Task Avoidance” To Go

by Paul Wickham Schmidt 

I haven’t studied Judge Gorsuch’s opinions enough to make any definitive judgement.  But, I really enjoyed his opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). He “gets it” about the current problems of “deferring to administrative courts like the BIA and the U.S. Immigration Court which are subject to interference and pressure from the Executive, which “owns” them, to implement certain pro-government policies at the expense of fairness and due process for the individual.

Contrary to the HuffPost report above, Judge Gorsuch wrote the unanimous opinion of the court, not a “concurring” opinion.  In it, he exposed the illogic of the Supreme Court’s so-called “Chevron doctrine.”

Chevron is a masterful piece of of Article III “judicial task avoidance” by the Supreme Court. It requires Federal Courts to “defer” to “captive” Executive Branch administrative judges, like the BIA, on important questions of law.  It also allows life-tenured Article III judges to avoid deciding difficult or potentially controversial issues.

In other words, as recognized by Judge Gorsuch, Chevron provides “cover” for Article III judges to avoid their sole constitutional responsibility of independently resolving legal questions. Judge Gorsuch and his colleagues found that Chevron did not apply in the particular circumstance before them.  The BIA had ignored both common sense and due process in trying to reach a result favorable to the Government.  The 10th Circuit reversed the BIA (for the third time in the same case).

Whatever the merits or demerits of the rest of his jurisprudence, I am encouraged that Judge Gorsuch recognizes the critical role of an independent Article III judiciary.  He is also “on to” the problems of over-relying on administrative judges, like the BIA and U.S. Immigration Judges, who work for the Executive and therefore can be subject to Executive rules and pressures that can, and sometimes do, unfairly skew results against individuals seeking justice in administrative courts.

Consequently, Judge Gorsuch should resist attempts by the Trump Administration to short-cut due process in the Immigration Courts and, hopefully, will encourage his colleagues to look closely to insure that individuals are being treated fairly in accordance with the Due Process Clause of the Constitution. If at some point Chevron and it’s even more pernicious progeny  known as “Brand X” — which incredibly encourages administrative courts to “overrule” Article III courts on questions of law — go down the drain, the country and the cause of justice will be well-served.  And, Article III judges will be required to once again fully earn the salaries to which their life-tenure entitles them.

Read Judge Gorsuch’s full opinion in Gutierrez-Brizuela v. Lynch below.

http://www.ca10.uscourts.gov/opinions/14/14-9585.pd

PWS

01/31/17

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