🏴‍☠️AFFIRMATIVE MISCONDUCT — 2d Cir. Calls Out DHS Misconduct, Reacts To DOJ’s Questionable Litigating “Strategy” In Equitable Estoppel Case — Schwebel v. Crandall

 

Jeffrey Feinbloom
Jeffrey Feinbloom
Partner
Feinbloom Bertisch LLP
NY, NY

Schwebel v. Crandall, 18-3391 (2d Cir. July 22, 2020)

https://scholar.google.com/scholar_case?case=1950544751001345123&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Attorney Jeffrey Feinbloom reports:

I am pleased to announce a big win today before the Second Circuit.  The Opinion is attached.

 

The Court held that the government is equitably estopped from denying an application for adjustment of status where:  (1) it commits “affirmative misconduct” by failing to comply with an affirmatively required procedure – in this case, the failure to issue a Receipt or Rejection Notice in response to an attempted filing; (2) the applicant reasonably relies on the agency’s misconduct/inaction; and (3) the applicant is prejudiced thereby.

 

The interesting twist in this case is that the Court declined to reach the underlying statutory issue – concerning the CSPA – on which the District Court ruled in our favor.  My take, having litigated and argued the case in both courts, is that the panel was genuinely flabbergasted that the government was pursuing the appeal and took the opportunity to stick it to DHS and issue a ruling on estoppel.  The District Court did not even address estoppel, which was my alternative argument and occupied less than 5% of my briefing.  My understanding is that the District Court decision – affirmed on other grounds – can still be cited for the substantive/legal conclusions it made regarding the CSPA.  (Please correct me if I am wrong).

 

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­­­­­­­­­­­Jeffrey A. Feinbloom

FEINBLOOM BERTISCH LLP

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Thanks, Jeffrey.  The term “Affirmative Misconduct” could be used to describe the overall conduct of DHS and the entire immigraton kakistocracy under the Trump regime.

Historical Footnote: I worked on Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976) (holding that government official’s “noncompliance with an affirmatively required procedure” constituted “severe” misconduct, and reversing Board of Immigration Appeal’s (“BIA”) order of deportation without remanding to agency for fact-finding or further proceedings) when I was a young attorney in the “Legacy INS” Office of General Counsel, then headed by the legendary immigration guru Sam Bernsen, in 1976. 

The Corniel-Rodriguez case led directly to the eventual creation of the section 212(k) waiver for innocent misrepresentations on visa applications as part of a larger “INS Efficiency Bill” proposed by our Office and eventually enacted by Congress. Just shows that there was a time when those running the U.S. immigration system actually “did the right thing,” at least on some occasions. Perhaps not surprisingly, “doing the right thing” often also proved to be the “efficient thing” by promoting justice and avoiding unnecessary, and often losing, litigation.

Those days, of course, are long gone. The Government immigration system is now run by hacks lacking both expertise and values and who, with the assistance of the DOJ, intentionally clog the Federal Courts with litigation that likely would have been deemed frivolous, unethical, or at least not in the best interests of the public in earlier times. 

It also highlights a severe deterioration in the performance of the Solicitor General’s Office in the DOJ. That office used to encourage all Federal agencies to develop administrative solutions in cases where, after review of the Article III Courts’ “adverse decisions,” the agency position below appeared to be indefensible in future litigation. 

Now, the Solicitor General is actually a “cheerleader” for some racially motivated appeals against lower court decisions correctly favoring immigrants and asylum seekers. These appeals are often “supported” by very obvious pretexts for invidious actions by the regime. Given the lack of integrity, courage, and commitment to racial justice on the current Supremes’ majority, the “bad guys” sometimes improperly prevail. 

But, it’s actually no more mystery to outgoing Solicitor General Noel Francisco what motivates Stephen Miller & co. than it is to the rest of us. It’s just that Francisco has consciously chosen to be “part of the problem,” something that should be remembered when the history of his disgraceful tenure in office is written. 

It also shows that whenever we finally get a return to “Good Government,” a “cleanout” of EOIR and creation of an Article I Immigration Court needs to be the first thing on the list; but, a thorough re-examination of the role of every part of a corrupt DOJ that has failed to act independently and has furthered a program of overt racism, inequality, and injustice, and often argued disingenuously for “worst practices and worst interpretations,” is also an absolute necessity.

To state the obvious, the fairness and efficiency of our immigration system as well as our entire U.S. Justice system is actually in full throttle reverse under the Trump kakistocracy.

Due Process Forever!

PWS

07-23-20

U.S. IMMIGRATION COURTS: FEINBLOOM, STEVENS, & SCHMIDT TAKE CASE FOR ARTICLE I IMMIGRATION COURT TO FBA’S 2019 CIVIL RIGHTS ENTOUFFEE IN NEW ORLEANS, LA, FEB. 16, 2019

 

“Injustice Anywhere is a Threat to Justice Everywhere. . . . Whatever Affects One Directly, Affects All Indirectly.”

Dr. Martin Luther King, Jr.

Letters From the Birmingham Jail

New Orleans– Appearing before the Federal Bar Association’s 2019 Civil Rights Entouffee, Attorney Jeffrey Feinbloom of the FBA Civil Rights Section, FBA Immigration Section Chair Elizabeth “Betty” Stevens, and I made a powerful pitch to assembled Civil Rights Attorneys for their support for an Article I United States Immigration Court.

 

Our panel emphasized that the current Immigration Courts under the Executive Office for Immigration Review (“EOIR”), U.S. Department of Justice are a “failed system” threatening everyone’s civil rights. Notwithstanding more Immigration Judges, these “courts” have continued to build backlog at an astonishing and accelerating rate, now topping 1.1 million pending cases following the Government shutdown.

 

Worse yet, they have essentially become a “hostile environment” for migrants, their attorneys, and sometimes the Immigration Judges and court staff themselves. They also are an impediment to realistic, professional immigration enforcement by DHS. Perhaps worst of all, due process of law has become the apparent enemy of DOJ and EOIR, rather than the objective.

 

The only way out of this mess is the establishment of an independent Article I Immigration Court, administered in a professional and apolitical manner by sitting judges, not politicized bureaucrats in Washington. Section Chair Betty Stevens and other Section members have helped develop a non-partisan bill to create an Article I Court.  We urge everyone to ask their Congressional representatives to make Immigration Court reform an urgent national priority.

 

Schmidt’s Five Points On Why U.S. immigration Courts Are Unlike Any Other Court System in America

 

  • Judges are selected, directed, and “supervised” by the Attorney General, the chief prosecutor;
  • There is no right to appointed counsel, so young children and others without any understanding of the U.S. legal system, often in detention, are forced to “represent themselves” in life or death cases against experienced ICE Counsel;
  • The chief prosecutor, the Attorney General, can change any individual case result that he doesn’t like, and rewrite immigration law in the DHS’s favor through “certified precedents;”
  • There is a 1.1 million case backlog, resulting largely from “Aimless Docket Reshuffling” by the DOJ that continues to grow, despite an increase in judges, without any realistic plan for reducing it;
  • So-called “civil immigration detention” can be used by the Government to limit representation, and for coercion and deterrence of migrants with little or no effective judicial recourse in many cases.

 

PWS

02-21-19