Tag: Jarndyce v. Jarndyce

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Cite as 28 I&N Dec. 399 (A.G. 2021) Interim Decision #4029

Matter of NEGUSIE, Respondent

Decided by Attorney General October 12, 2021

U.S. Department of Justice Office of the Attorney General

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).

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This terse decision conceals a total, disgraceful mess in our justice system!

• Mr. Negusie, the respondent in this case, filed his asylum application before an Immigration Judge in 2004 — 17 years ago!
• In 2005, the IJ denied his application because of the so-called “persecutor bar,” but “deferred” his removal to Eritrea under the Convention Against Torture(“CAT”).
• The BIA affirmed the IJ’s decision.
• In 2007, the 5th Circuit affirmed the BIA.
• In 2009, the Supreme Court reversed the BIA, and remanded the case to the BIA under their “Chevron doctrine” of “judicial task avoidance,” Negusie v. Holder, 555 U.S. 511 (2009].
  • At that time, in separate opinions, five Justices expressed rather definitive views about the substantive legal issue.
  • Justices Thomas, Scalia, and Alito all clearly believed that there should be no “duress exception” to the persecutor bar.
  • Justices Stevens and Breyer obviously thought that there was a “duress exception.”
  • The other four, Chief Justice Roberts, Justices Kennedy, Souter, & Ginsburg, had obviously studied matter, but rather than resolving the issue, chose to “punt” it back to the BIA for their supposed “expert interpretation” — an unusual “vote of confidence” in an administrative body they had just found to have misinterpreted their prior decisions.
• “The Interregnum:” For the next nine years, during which both Administrations and BIA membership changed several times, the BIA “ruminated” on the task assigned them by the Supremes. Finally, in 2018, the BIA issued a precedent decision finding a limited “duress defense.”  Matter of Negusie, 27 I&N Dec. 347 (BIA 2018). Nevertheless, the BIA found that Negusie didn’t qualify for that limited defense. So, Negusie lost! But, that was hardly the end of the matter within the convoluted world of the DOJ!
• Despite the Government’s prevailing in Negusie’s case, four months later, AG Sessions “certified” that decision to himself.
• Two years later, in 2020, another AG, Billy Barr, who had succeeded Sessions, reversed the BIA in a precedent, finding that there was no “duress exception,” however limited, to the “persecutor bar.” Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020). Mr.Negusie lost once again, but this time on a different rationale than employed by the BIA!
• The case was returned to the BIA for “background checks,” since Mr. Negusie’s removal had been indefinitely “deferred” under the Convention Against Torture (“CAT”). After Mr.Negusie’s background “cleared,” the BIA apparently entered a final order of removal to Eritrea, but “deferred” execution of that order under CAT.
• Thereafter, on April 15, 2021, Mr. Negusie exercised his right to seek review in the 5th Circuit for the second time. https://dockets.justia.com/docket/circuit-courts/ca5/21-60314
• But, before that review was complete, AG Garland “certified” the last BIA decision (actually Barr’s 2020 precedent) for review, thus “staying” its effect.
• Summary: one IJ decision; three trips to the BIA; two trips to the Fifth Circuit; three AG decisions; one trip to the Supremes = no decision on a 2004 application!
• In other words, five different tribunals have had this case before them at least nine times over 17 years without finally resolving the issue!
• In the meantime, I can tell you from past experience that this issue arises on a regular basis before Immigration Judges. They, in turn, must resolve it as best they can without definitive guidance from higher judicial authorities, sometimes relying on “precedents” that later are vacated or invalidated.
• The solution: How about a BIA made up of real judges: true nationally respected experts and “practical scholars” in immigration, human rights, and due process who will provide timely, legally correct guidance at the initial appeal level?
• And, if they do happen to get it wrong, how about Supremes that decide the legal issues coming before them, as they are paid to do, rather than aimlessly “orbiting” legal questions back to the lower tribunals that got them wrong in the first place under the highly problematic “Chevron doctrine of high-level judicial task avoidance?”
• Also, in the event such reforms were made, how about Attorneys General, who traditionally have particular expertise in neither immigration nor human rights, keeping their “fingers out of the pie” and letting the real experts do the work? (In this respect, while AG Sessions had a long, disgraceful political history of advancing far right, xenophobic, racist, misogynistic tropes, such that his nomination to become a Federal Judge was rejected by his own party, no recognized immigration/human rights expert would classify Sessions as having either legal expertise in the area or proper qualifications to serve in any judicial capacity including a “quasi-judicial” one, particularly in areas where he had previously and consistently shown extreme bias and intellectual dishonesty in his public statements and actions. Nor did AG Barr have any legitimate expertise that would qualify him to participate in quasi-judicial capacity in immigration and human rights cases. While, ordinarily, a Federal Circuit Judge with long service would acquire some immigration experience and perhaps develop expertise, Judge Garland sat on the DC Circuit, which did not regularly review Immigration Court cases, because there is no Immigration Court sitting in D.C.) 
• One might also ask why the Supremes would remand to a purportedly “expert agency” for statutory interpretation, only to have the process hijacked by politicos?
• Finally, multi-raspberries to Congress who let this disgraceful abuse of both taxpayer resources and our justice system go on, in plain sight, for decades without corrective action. America needs an independent Article I Immigration Court, with judges selected on a merit basis, NOW!
• Where’s Charles Dickens when we need him? See, e.g., Jarndyce v. Jarndyce.

🇺🇸Due Process Forever!

PWS

10-15-21