Judge Edward F. Kelly – immigrationcourtside.com

👨‍⚖️⚖️BIA JUDGE EDWARD F. KELLY RETIRES, WILL CONTINUE TO TEACH AT GEORGETOWN LAW!

Courtside has learned that BIA Appellate Immigration Judge Edward F. Kelly has retired. Although his retirement will not become “official” until the end of this month, his “last day on the job” was yesterday, March 18.

He has been on the BIA since 2017, and with EOIR for 31 of his 34 years of Government service. He served in a number of management positions during my tenure as BIA Chair. He also was a Deputy Chief Immigration Judge immediately prior to his BIA appointment.

Judge Kelly will continue to teach “Refugee Law & Policy” (“RLP”) at Georgetown Law as an Adjunct Professor. That class has a long and distinguished history, having been taught in the past by,among others, Professor Andy Schoenholtz, Professor Susan Forbes Martin, the late Professor (and former EOIR Director and BIA Chair) Juan Osuna, and, of course me (2012-14).

Significantly, the students in RLP were the inspiration for the “New Due Process Army” (“NDPA”). Many of them have gone on to make huge impacts on the law, human rights, and social justice literally worldwide (visiting foreign scholars were an integral part of the “RLP student body,” just as they have been in my current class “Immigration Law & Policy.”)

Congratulations and welcome to the wonderful world of retirement, Judge Kelly. Glad to have you as a faculty colleague at the Georgetown Law “Immigration Consortium” that includes, of course, CALS Asylum Clinic Co-Directors Professors Andy Schoenholtz, Phil Schrag, and others!

Here’s Judge Kelly’s bio from the Georgetown Law website:

Board Member, Board of Immigration Appeals, U.S. Department of Justice; Adjunct Professor of Law

Edward F. Kelly

B.A., Notre Dame; J.D., Notre Dame

Edward Kelly is currently an appellate immigration judge (Board Member) at the Board of Immigration Appeals, the highest administrative tribunal on immigration law in the United States and a component of the U.S. Department of Justice’s Executive Office for Immigration Review.

He has served in several immigration positions in the Executive Office for Immigration Review over the last thirty years, including tenures as Deputy Chief Immigration Judge, Assistant Chief Immigration Judge, Senior Counsel and Chief of Staff in the Office of the Chief Immigration Judge, Acting Director of the Office of Administration, and senior legal advisor and attorney advisor to the Board of Immigration Appeals.

His experiences outside the agency include positions as an assistant counsel to the United States House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Refugees, and International Law, and as a high school teacher of humane letters at Trinity School at Meadow View, Falls Church, Virginia. Prior to his legal career, he served as a volunteer teacher with the United States Peace Corps in Gabon, Africa.

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Let’s hope that Judge Garland does a better job with his initial Appellate Immigration Judge appointments than he did with his first Immigration Judge Appointment. It’s time to treat these appointments with the seriousness they deserve and to bring in the “best and the brightest” from the NDPA to turn the BIA around and return it to the noble mission of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all.”

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

03-19-21

⚖️RARE BIA VICTORY FOR IMMIGRANT! — Matter of Bernardita Maria VOSS, 28 I&N Dec.107 (BIA 2020)

Full decision:

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BIA HEADNOTE:

If a criminal conviction was charged as a ground of removability or was known to the Immigration Judge at the time cancellation of removal was granted under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2018), that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.

PANEL: ADKINS-BLANCH, Deputy Chief Appellate Immigration Judge; KELLY and COUCH, Appellate Immigration Judges.

OPINION BY: Judge Edward KELLY

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😎😎😎😎😎

PWS

10-11-20

“GOOD ENOUGH FOR GOVERNMENT WORK?” — Any Ol’ Notice Will Do! — BIA Continues To “Fill In The Blanks” In Aid Of “Partners” @ DHS Enforcement — MATTER OF HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Matter of HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

https://www.justice.gov/eoir/page/file/1274901/download

BIA HEADNOTE:

The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.

PANEL: BEFORE: Board Panel: MANN, Board Member; MORRIS,* Temporary Board Member; Concurring Opinion: KELLY, Board Member.

* Immigration Judge Daniel Morris, Hartford CT Immigration Court, Temporary Board Member/Appellate Immigration Judge

OPINION BY: Judge Ana Mann

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The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers).

This follows Matter of J.J. Rodriguez where the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.

There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.

I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”

To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.

Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴‍☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.

Meanwhile, back at the ranch, the BIA is advertising for an additional Vice Chair/Deputy Chief Appellate Judge to help insure that the deportation assembly line in Falls Church moves smoothly and that due process and fundamental fairness never get in the way of enforcement. https://www.justice.gov/legal-careers/job/deputy-chief-appellate-immigration-judge-vice-chair

Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.

Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.

Due Process Forever! Complicity Never!

PWS

05-13-20

BAD LAW: BIA Evades Supremes Again To Aid DHS Enforcement — Matter of NAVARRO GUADARRAMA, 27 I&N Dec. 560 (BIA 2019)

https://go.usa.gov/xmutz

Matter of NAVARRO GUADARRAMA, 27 I&N Dec. 560 (BIA 2019)

BIA HEADNOTE:

Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.

PANEL: Appellate Immigration Judges MALPHRUS, MANN, and KELLY

OPINION BY: Judge Ana L. Mann

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Seems to me the BIA got this one all wrong. The Florida statute was amended specifically to broaden the definition of “marihuana” to include things that aren’t marihuana. How can the BIA say that there is no chance of prosecution? Since stalks, etc. are now “marihuana” it wouldn’t even be a defense to point out that you just possessed stalks.

The BIA has twisted item the concept of “far fetched” to include things that the legislature clearly contemplated when amending the statute.

The Supreme’s decision in Moncrieffe was clearly intended to be ameliorative. But the BIA has turned it into a “sword” for DHS. Moreover, since “stalks only” would no longer be a defense, why would any state case discuss it?

Generally the “Ferreira test” is impossible for any unrepresented respondent to meet. Indeed, I doubt that most detention center judges would have access to the necessary materials to research something so technical.

As my good friend and colleague in the Roundtable of Retired Judges, Judge Jeff Chase, added:

The Supreme Court and some of the circuits created case law that was designed to be clearer – i.e. it doesn’t matter what the respondent actually did, or what the actual sentence was, just look at the least culpable behavior covered by the statute.And the Supremes and some circuits obviously intended it to be ameliorative, given the harsh consequences of the immigration laws.

The BIA sees its mission as trying to render those higher court decisions meaningless.

How far we have come from an organization supposdly dedicated to using teamwork and best practices to “guarantee fairness and Due Process for all.”

PWS

06-16-19

HON. JEFFREY CHASE ON HOW THE BIA “BLEW OFF” THE SUPREMES — Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018) — Is The BIA Risking Docket Disaster To Please Sessions?

https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court

The BIA vs. the Supreme Court?

Although it hasn’t caught the attention of the public or the media, the Supreme Court’s June 21 decision in Pereira v. Sessions has inspired immigration lawyers this summer, giving reason to hope and dream. Unfortunately, the case’s importance gets lost in the details to those not proficient in the field of immigration law. The issue that the Supreme Court agreed to decide was a narrow one: whether a Notice to Appear (i.e. the document that must be served by DHS on the Immigration Court in order to commence removal proceedings) that lacks a time and a date of the initial hearing is sufficient to invoke the “stop-time rule” that would prevent a noncitizen from accruing the 10 years of continuous presence in the U.S. needed to apply for a relief from deportation called cancellation of removal. If you are a layperson, I’m sure I’ve already lost you. But read on, as what preceded doesn’t really matter for purposes of our discussion; the important part is yet to come.

BIA precedent decisions that are subpar in their rationale are often upheld by circuit courts because of something called Chevrondeference. Chevron refers to a 1984 Supreme Court case requiring courts to defer to the interpretation of statutes by federal agencies that are specifically charged with administering the statute in question. The Board of Immigration Appeals is a part of one of the agencies (EOIR) charged with administering immigration laws; therefore, under Chevron, its decisions are owed deference by the circuit courts, even if those courts disagree with the BIA’s decision or would have reached a different outcome themselves. But before such deference is owed, the decision must pass a two-step test. First, the reviewing court must find that the statute the BIA is interpreting is ambiguous. This is important, because if the statute is clear on its face, there is no basis for the agency to have to interpret that which needs no interpretation. Only if the court determines that the statute is in fact ambiguous does it apply the second step of the test, which is whether the agency’s interpretation is reasonable.

I’m pretty certain that I’ve lost even more readers in the preceding paragraph. I thank those of you who are still with me for your patience. In Pereira, the statute involved is section 239(a) of the Immigration and Nationality Act, which states what information the Notice to Appear (i.e. the document needed to commence removal proceedings) must contain. In a 2011 precedent decision, the BIA had interpreted that statute to mean that the time and date of the initial hearing were not critical elements, and that their inclusion was not required to trigger the stop-time rule. Six federal circuits accorded Chevron deference to the BIA’s interpretation. The lone exception was the Third Circuit. The Supreme Court agreed to hear the case to resolve this split. In an 8-1 decision (in which even Justice Gorsuch, Trump’s appointee, joined the majority), the Court sided with the Third Circuit. The Court explained that no Chevrondeference was due because the statute was crystal clear, as it said in no uncertain terms that a time and a date are among the information a Notice to Appear must contain.

Finally, here is the really important part. In its decision, the Supreme Court stated that a notice that does not contain a time and date of hearing “is not a notice to appear” under section 239(a). The highest court in the land did not say that it is not a notice to appear only for some narrow purpose; it bears repeating that it said without such information, the document is not a Notice to Appear.

Those of you who are still reading might feel let down about now. You’re saying “That’s it? Where is the big payoff I was promised? I’ll never get those three minutes of my life back that I just wasted reading jibberish about some kind of stopping rule that I still don’t understand.” So here is where I hope I make it worthwhile. All of us immigration lawyers read the above sentence and instantly thought the same thing: if the Supreme Court just said that a notice without a time and date is not a Notice to Appear, than almost every one of our collective clients were never properly put into removal proceedings. The Supreme Court decision mentioned that when asked what percentage of NTAs issued in the past three years lacked a time and a date, the government responded “almost 100 percent.” There are presently close to 750,000 cases pending before immigration courts, and there were hundreds of thousands of cases already decided by those courts over the past 15 or 20 years that also involved NTAs missing the time and date. And the courts are now going to have to find that nearly all of those proceedings were invalid. Old removal orders will have to be reopened and terminated. Almost all pending cases will have to be terminated. Although DHS will at least intend to restart all of those hearings over by now serving each individual with an NTA that does contain a time and date, how long might that take to accomplish? And even if they are placed into proceedings again, those who were previously denied relief get a second chance. Perhaps this time with a different judge, a better lawyer, and more equities in their favor?

So in a year in which the Attorney General has tried to remake immigration laws to his own liking, and continues to assault the independence of the only judges he directly controls; in which children have been unapologetically separated from their parents at the border, in which victims of domestic violence have been told the rapes and violent abuses they have suffered are will get them no protection in the U.S.A., Pereira allowed us to dream of pushing a “restart” button, a “do-over.” Attorneys began filing motions to terminate. The response of immigration judges was mixed, with some agreeing with the argument and terminating proceedings; while others said no, Pereira was only meant to apply to the narrow technical issue of the “stop-time” rule, and not to the broader issue of jurisdiction.

Of course, the BIA needed to weigh in on this issue. I had no doubt that the Board would rule with the latter group and find that proceedings need not be terminated. And of course, on Friday, that’s just what they did. The response from the legal community has been one of outrage. First of all, it normally takes 18 months or longer for the BIA to issue a precedent decision; it can sometimes take them many years. Here, the Board issued its decision in two months. As one commenter pointed out, it reads like a college freshman paper written at midnight. Considering the importance of the issue, the Board truly abandoned its legal responsibility by cranking out such a poorly written decision that fails to address (much less adequately analyze) most of the major issues raised by Pereira.

While I could go on and on with what is wrong with the BIA decision (issued on a Friday afternoon before the Labor Day weekend, the better to sneak under the radar), I’ll just focus here on one point. The decision (written by Board Member Molly Kendall Clark), cites the applicable regulation (8 C.F.R. section 1003.14(a)), which states that “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” As background, another section of the regulations defines “charging document” to include a “Notice to Appear.” The documents in question here all purport to be Notices to Appear, and do not meet the definition of any other charging document described in the regulation. Kendall Clark writes that the regulation does not specify what information must be contained in the charging document at the time it is filed with the Immigration Court, “nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.”

Really? Because the U.S. Supreme Court just said, very clearly, that a notice lacking a time and date of hearing is not a Notice to Appear. How is it OK for the BIA to just ignore a crystal clear holding of the Supreme Court?

The answer is that in the mind of the BIA’s judges, the Supreme Court doesn’t have the ability to fire them, while the Attorney General does. The other truth is that while BIA judges have been removed under Republican administrations for being too liberal, none has ever suffered any consequences under Democratic administrations for being too conservative. Although I’m in the liberal camp, I’m not saying that the BIA is not entitled to reach a conservative conclusion. But it can’t so blatantly disregard the law (in particular, a decision of the Supreme Court) out of self-preservation or political expediency.

The next step will be appeal of the issue to the various circuits. In light of Pereira, there should be no Chevron deference accorded to the Board’s latest decision. However, should another circuit split result, this issue may end up before the Supreme Court again.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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Here’s a copy of the BIA’s precedent decision in

Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018):

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Want to see a better, more logical approach that would have honored the Supremes’ reasoning in Pereira? Here’s a succinct, well-reasoned opinion from Judge Elizabeth Young of the San Francisco Immigration Court that refutes each ICE argument and shows why the BIA’s approach in Bermudez is likely to be rejected by at least some Circuit Courts.

IJ ORDER – SF IJ terminated under Pereira – very clear reasoning – Nameless

(Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this along.)

That no BIA Appellate Immigration Judge was willing to argue the much more logical and legally defensible approach presented in Judge Young’s decision illustrates how little real deliberation or debate remains at today’s BIA. Basically, a deliberative tribunal that no longer dares or cares to publicly deliberate in setting precedents and that decides the vast majority of non-precedent cases as “panels of one.”

As Jeffrey points out, the BIA and ICE appear to be on self-created course for a potential “Pereira II.” That, in turn, could result in hundreds of thousands of cases being subject to remand or reopening for termination. On the other hand, if ICE just reserved the NTA now, as suggested at the end of Judge Young’s opinion, the whole problem could largely be avoided. Go figure!

Yet another example of how the backlog is unlikely to diminish as long as the Immigration Courts remain in DOJ, and particularly with Jeff Sessions as the AG.

PWS

09-02-18

SPLIT BIA FINALLY RULES ON “FINALITY” – MATTER OF J.M. ACOSTA, 27 I&N DEC. 420 (BIA 2018)

3934JM ACOSTA

Matter of J.M. ACOSTA, 27 I&N Dec. 420 (BIA 2018)

BIA HEADNOTE:

(1) A conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.

(2) Once the Department of Homeland Security has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings.

(3) Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.

PANEL: BIA APPELLATE IMMIGRATION JUDGES KELLY, GREER, AND MALPHRUS

OPINION BY: JUDGE EDWARD F. KELLY

CONCURRING & DISSENTING OPINION: JUDGE GARRY D. MALPHRUS

KEY QUOTE FROM JUDGE KELLY’S MAJORITY OPINION:

In holding that the finality requirement continues to apply after the enactment of the IIRIRA, we emphasize that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.11 Consequently, absent proof of a waiver of appeal rights, a conviction does not achieve finality for immigration purposes until the time for filing an initial direct appeal has expired under the laws of the applicable jurisdiction. However, once the DHS has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes.

To rebut that presumption, a respondent must come forward with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court.12 He or she must also present evidence that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings. See Matter of Marquez Conde, 27 I&N Dec. at 255 (reaffirmingMatter of Pickering and reiterating that “convictions that have been vacated based on procedural and substantive defects in the underlying criminal proceeding [are] no longer valid for immigration purposes”); see also Matter of Rodriguez-Ruiz, 22 I&N Dec. at 1379–80 (giving effect to the alien’s vacated conviction where there was evidence by way of a court order that the conviction was vacated on the legal merits of the underlying criminal proceedings).

Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of the conviction will not be given effect to eliminate the finality of the conviction. Such appeals include those that relate only to the alien’s sentence or that seek to reduce the charges, to ameliorate the conviction for rehabilitative purposes, or to alleviate immigration hardships, and any other appeals that do not challenge the merits of the conviction. See Matter of Roldan, 22 I&N Dec. 512, 521–24 (BIA 1999) (holding that under the statutory definition of a “conviction” in section 101(a)(48)(A) of the Act, no effect is to be given in immigration proceedings to a State action that purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a State rehabilitative statute); see also Matter of Pickering, 23 I&N Dec. at 624–25 (holding that a conviction set aside for reasons solely related to post-conviction events such as rehabilitation or immigration hardships will remain a conviction for immigration purposes).13

In this case, the respondent submitted evidence indicating that he filed a motion for an extension of the appeal deadline and that the motion was granted and the appeal was permitted by the New York appellate court.14Under these circumstances, we will remand this case to the Immigration Judge to consider the status of the pending appeal and its basis and to determine whether a continuance may be appropriate. See Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018). In this regard, the respondent and the DHS should be given an opportunity to present any additional documentary and testimonial evidence they wish to offer in assisting the Immigration Judge.

Accordingly, the appeal from the Immigration Judge’s determination that the respondent is removable under section 237(a)(2)(A)(i) of the Act and from his denial of the respondent’s application for cancellation of removal under section 240A(a) of the Act will be dismissed. The respondent’s motion to remand based on new evidence will be granted.

[Text of Footnotes Omitted]

KEY QUOTE FROM JUDGE MALPHRUS’S CONCURRING & DISSENTING OPINION:

Based on the plain language of the Act and the clear weight of authority in the circuit courts, I would conclude that “the first definition of ‘conviction’ in § [101](a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.” Planes, 652 F.3d at 996. The majority errs by invoking congressional silence to convert the otherwise plain language at issue here into statutory ambiguity, thereby giving us license to resolve the ambiguity in the manner that we think is best. “Regardless of our view on the wisdom or efficacy of Congress’s policy choices, we are not free to read in additional elements where the legislature has declined to include them.”Id. (citing Jones v. Bock, 549 U.S. 199, 216–17 (2007)).

I therefore respectfully dissent from the majority’s decision to remand this case for further proceedings. I would deny the respondent’s motion to remand because the new evidence does not indicate that his conviction has been overturned or vacated, and he remains ineligible for relief under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). See Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).

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This is important guidance from the BIA on a recurring question before U.S. Immigration Judges. Congrats to Judge Kelly on what, by my calculation, is his first published precedent opinion. And, he and Judge Anne Greer appear to have gotten it right. I don’t understand Judge Malphrus’s contention (in a part of his opinion not quoted above) that an individual who is actually removed based on a conviction later vacated on appeal hasn’t suffered any unfairness or irreparable harm.

PWS

08-30-18

Judge Edward F. Kelly Was Just Appointed To The “High Court Of Immigration” — Who Knew?

The answer is that “almost nobody knew” outside of the insular “tower” world of EOIR Headquarters in Falls Church, VA. It took some super sleuthing by ace Legal Reporter Allissa Wickham over at Law 360 to smoke this one out.

With a little help from her friends, the fabulous “AWick” came upon Judge Kelly’s name in the Roster of Board Members in The Board of Immigration Appeals (“BIA”) Online Practice Manual. (As the BIA Practice Manual was instituted during my tenure as BIA Chair, I’m gratified that someone out there is actually reading it.)

Armed with that tidbit of information, AWick was able to get confirmation of Judge Kelly’s appointment from EOIR spokesperson Kathryn Mattingly on Friday evening. Interestingly, Judge Kelly’s biography no longer appears in the online listing for the Office of Chief Immigration Judge, where he had served for a number of years as a Deputy Chief Immigration Judge. Nor has his name or biography appeared under the online listing for the BIA. In other words, Judge Kelly is somewhat “lost in EOIR space” — close to being a bureaucratic “non-person.”

For those who don’t know, the BIA is the highest administrative tribunal in the filed of immigration. With an authorized membership of 16 Appellate Immigration Judges (Judge Kelly became #15, leaving one vacancy), the BIA received more than 29,000 cases and completed more than 34,000 cases in FY 2015 and had nearly 17,000 pending at the end of that year. By comparison, for the same period, the U.S. Supreme Court received 6,475 cases and took only 81 for oral argument.

The Board also issues nationwide precedents that are binding on the U.S. Immigration Courts and the DHS. Although a part of the Executive, not the Judicial Branch, the BIA effectively occupies a position in our justice system just below that of a U.S. Court of Appeals.

Moreover, as I have pointed out in other blogs, because of the idiosyncrasies of the Supreme Court’s so called “Chevron doctrine,” the Courts of Appeals actually are required to “defer” to the BIA’s interpretation of ambiguous questions of law. Indeed, under the Supreme Court’s remarkable “Brand X doctrine” (“Chevron on steroids”) under some circumstances the BIA can reject the legal reasoning of a Court of Appeals and apply its own interpretation instead.

In other words, notwithstanding their rather cloistered existence, and attempt to remain “below the radar screen,” BIA Appellate Immigration Judges are some of the most powerful judges in the entire Federal Justice system. That makes the lack of publicity about Judge Kelly’s elevation to the appellate bench even more curious.

For those who don’t know him, Judge Kelly started moving “up the ladder” at EOIR when I appointed him to a newly created staff supervisory position at the BIA in the mid-1990s. He was selected because of his reputation for fairness, scholarship, strong writing, collegiality, and ability to teach and inspire others. In other staff positions at the BIA, Judge Kelly became a master of understanding, explaining, and recommending improvements to the case management system. I believe it was those skills and understanding of the mechanics of the Immigration Court System that made him rise to a Deputy Chief Judge position within the Office of Chief Immigration Judge in Falls Church.

Judge Kelly was at the BIA in the late 1990s when the EOIR Executive Group developed the “EOIR Vision” of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Although over the years, Department of Justice and EOIR management have essentially downplayed and moved away from any public expression or reinforcement of this noble vision, I’m confident that Judge Kelly remains committed to the due process mission we all embarked upon together several decades ago.

From his prior vantage point as a Deputy Chief Immigration Judge, Judge Kelly saw first-hand the docket and due process disaster caused by the DOJ’s politicized meddling in the daily case management practices of the U.S. Immigration Courts over the past several years. He also witnessed the general failure of the BIA to step up and stand up for the due process rights of individuals being hustled through the system with neither lawyers nor any realistic chance of effectively presenting their claims for potential life saving protection.

I hope that as the “new Appellate Immigration Judge on the block,” Judge Kelly will bring a forceful voice for due process and fairness to his colleagues’ deliberations. By doing so, perhaps he can persuade them to face and address some of the important due process and fairness issues in the Immigration Courts that they have been avoiding.

Judge Kelly’s professional bio (taken from his appointment as Deputy Chief Judge, in the absence of a formal announcement from DOJ/EOIR) is reprinted here:

“FALLS CHURCH, Va. – The Executive Office for Immigration Review (EOIR) today announced the appointment of a second deputy chief immigration judge (DCIJ). Effective March 10, 2013, Assistant Chief Immigration Judge (ACIJ) Edward F. Kelly will become a DCIJ. Judge Kelly will assume direct supervision of the program components in the Office of the Chief Immigration Judge (OCIJ), including the legal unit, the language service unit, the organizational results unit, the chief clerk, and the executive officer.

“Judge Kelly’s appointment as deputy chief immigration judge is in recognition of his tremendous contributions to OCIJ’s efficiencies and services,” said Chief Immigration Judge Brian M. O’Leary. “With his expanded role, I am confident OCIJ will continue to improve our operations and inspire our staff.”

Biographical information follows:

Attorney General Holder appointed Judge Kelly as an ACIJ in March 2011. He received a bachelor of arts degree in 1982 and a juris doctorate in 1987, both from the University of Notre Dame. From November 2009 to March 2011, Judge Kelly served as senior counsel and chief of staff for OCIJ. From 2007 to 2009, he was counsel for operations for OCIJ at EOIR. From 1998 to 2007, Judge Kelly was a senior legal advisor for the Board of Immigration Appeals (BIA), EOIR. From 1995 to 1998, he served as a supervisory attorney and team leader for the BIA. From 1989 to 1993 and again from 1994 to 1995, Judge Kelly was an attorney advisor for the BIA. From 1987 to 1989, he served as an assistant counsel, Subcommittee on Immigration, Refugees, and International Law, U.S. House of Representatives, Washington, D.C. From 1982 to 1984, he served in the U.S. Peace Corps in Gabon, Africa. Judge Kelly is a member of the Virginia State Bar.”

Perhaps, eventually, EOIR will announce Judge Kelly’s appointment. Who knows?

Additionally, those of you with full Law 360 access (which I don’t have) can read AWick’s full article at the Lexis link below.

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/02/03/board-of-immigration-appeals-gains-new-member.aspx?Redirected=true

PWS

02/04/17

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

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