ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire

Another one bites the dust
Another one bites the dust
And another one gone, and another one gone
Another one bites the dust…

—“Another One Bites The Dust” by Queen

ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire

By Paul Wickham Schmidt

Exclusive for Courtside

Alexandria, VA, Jan. 16, 2019. Appellate Immigration Judge Linda Wendtland will soon retire from the BIA. Acting Chair Garry D. Malphrus made the announcement to judges and staff.

Judge Wendtland is the fourth veteran appellate jurist to leave the BIA recently, following the retirements of Judges Patricia Cole, John Guendelsberger, and Molly Kendall Clark at the end of 2019. Additionally, former BIA Chair Judge David Neal retired suddenly in October.

Thus, the Trump regime’s aggressive effort to “dumb down” and weaponize the U.S. Immigration Courts as a means of depriving migrants of any semblance of due process of law appears to be taking its toll on our nation’s highest administrative immigration tribunal. The BIA now has six vacancies among its 21 authorized judges, including the Chair. Based on recent hiring, we can expect only candidates with established pro-enforcement records and inordinately high rates of asylum denial to be appointed to BIA judgeships by Attorney General Barr.

Judge Wendtland was appointed in 2008 by Attorney General Mukasey, following a long career as a senior litigator in the Office of Immigration Litigation in the DOJ’s Civil Division. She is generally regarded as scholarly, analytical, and occasionally willing to take positions favoring migrants rather than DHS in appellate decisions, notwithstanding her government litigation background. The qualities of scholarship, impartial analysis, and decisional independence appear to have fallen “out of vogue” in the selection of Immigration Judges at both the trial and appellate levels in the Trump regime’s DOJ.

Indeed, and shockingly to those of us in the Round Table of Former Immigration Judges, former Attorney General Jeff Sessions publicly emphasized that Immigration Judges should be “partners” with DHS enforcement while he spread false, unsupported narratives about widespread asylum fraud and “dirty” immigration lawyers. Many found these biased statements of expected “judicial subservience” to a highly politicized and controversial immigration enforcement agenda to be astounding, particularly since most of the “fraud” that has come to light recently relates to the regime’s inhumane treatment of asylum seekers and denial of their due process and legal rights to apply for protection in the United States. All of the actions to date by Attorney General Barr show that he shares the same biased, enforcement skewed view of the Immigration Courts as mere appendages of DHS enforcement as did his predecessor.

Judge Wendtland’s departure will be yet another blow to the few remnants of EOIR’s once proud, but now forgotten and despised, “vision” of “through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that’s now become a cruel joke for many endangered asylum seekers being rejected at our Southern Border without any semblance of fairness or due process whatsoever.

Thanks for your service, Judge Wendtland, and best wishes in the future.

PWS

01-16-20

START 202O OFF RIGHT WITH THESE INSPIRING STARS OF THE “NEW DUE PROCESS ARMY” – 1) Judge Lisa Dornell On CNN; 2) Judge Jeffrey Chase Blog “The Need for Transparency;” 3) Elizabeth Gibson, Esquire, “The Gibson Report 12-30-19”

Lisa Dornell, a former US immigration judge, says she could no longer serve under President Donald Trump after his administration interfered with immigration courts. #CNN #News

Category

News & Politics

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Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

MON, DEC 30

The Need for Transparency

A respected colleague of mine, former Immigration Judge Ilyce Shugall, generously volunteered to take time from her own schedule to travel halfway across the country to San Antonio, TX and observe

Read More

Other news:

Second Circuit holds that the deadline for filing BIA appeals “is a claim-processing rule amenable to equitable tolling:” Attipoe v. Barr

CNN reports on immigration judges quitting in response to Trump Administration policies

BIA Appellate Judges Patricia Cole, Molly Kendall Clark, and John Guendelsberger, and Immigration Judge Charles Honeyman of the Philadelphia Immigration Court are retiring.

Thank you for reading, and best wishes for a happy and healthy 2020!

500 4th Ave., Brooklyn, NY 11215, USA

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Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

TOP UPDATES

Immigration Judges In NYC Are Even Less Likely To Grant Asylum Now

Gothamist: [Contains a great chart summarizing every NYC IJ’s grant rate and changes over time]. Just four years ago, the research group TRAC found New York judges denied just 16 percent of asylum seekers. That figure has been rising since Trump took office. But the average denial rate for a New York judge shot up to 46 percent in fiscal year 2019, according to the latest data, from 32 percent in the previous year. See also Immigration judges quit in response to administration policies.

ICE reopening long-closed deportation cases against Dreamers

CNN: ICE has begun asking immigration courts to reopen administratively closed deportation cases against DACA recipients who continue to have no criminal record, or only a minor record. Immigration attorneys in Arizona confirmed at least 14 such cases being reopened since October, and CNN also found DACA recipients whose cases recently were reopened in Nevada and Missouri.

Bureaucracy as a weapon: how the Trump administration is slowing asylum cases

Guardian: Over a half-dozen immigration attorneys across the country interviewed by the Guardian describe how the US Citizenship and Immigration Services (USCIS) has returned applications unprocessed over the equivalent of failing to dot an I or cross a T – a shift with potentially life-altering consequences for their vulnerable clients.

Federal government deleted more immigration court records about asylum in public data release: researchers

U-T: Though the federal government promised to review a public data release of immigration court cases after researchers pointed to missing records relating to asylum, the issue has only gotten worse.

A Secret Report Exposes Health Care For Jailed Immigrants

Buzzfeed: BuzzFeed News has obtained a memo in which an ICE whistleblower says two immigrants got preventable surgeries and two were given the wrong drugs. Four died — one after getting “grossly negligent” care. See also House panel opens investigation into immigrant detainees’ medical care.

Immigration Was the No. 2 Story of 2019

AP: The drive by the Democratic-led House of Representatives to impeach President Donald Trump was the top news story of 2019, according to The Associated Press’ annual poll. Trump also figured in the second and third biggest stories of the year: the fallout over his immigration policies and the investigation by Special Counsel Robert Mueller into whether his election campaign coordinated with Russia.

Immigration Court “Status Docket” – the Secret Almost Alternative to Administrative Closure

LexisNexis: In 2018 the Attorney General ended the ability of immigration judges to administratively close cases, concluding they had in fact never had such authority. As shocking as that was at the time, we’re now seeing pieces of that puzzle were being laid out months before the Attorney General released that decision. And the more we learn, the more it appears the end of administrative closure was more about results (faster deportations) than about the legal principles outlined there.

LITIGATION/CASELAW/RULES/MEMOS

Asylum Ban 2.0 Temp Stay Granted in Favor of Administration

The government requests an emergency temporary stay of the district court’s order provisionally certifying a class, and preliminarily enjoining the government from enforcing the Third Country Transit Rule, 8 C.F.R. § 208.13(c)(4), against non-Mexican nationals who were allegedly in the process of arriving at a port of entry before the Third Country Transit Rule went into effect…We grant the government’s motion for a temporary stay to preserve the status quo pending a decision on the motion for stay pending appeal.

Ninth Circuit Orders Review of Immigrant’s Deportation During Appeal

CNS: A Ninth Circuit panel on Friday granted an immigrant’s petition to review the federal government’s decision to deport him, saying that his removal from the country during legal proceedings did not constitute a withdrawal of his appeal.

USCIS Begins Accepting Green Card Applications Under Liberian Refugee Immigration Fairness

USCIS began accepting applications to adjust status to lawful permanent resident from certain Liberian nationals under Section 7611 of the National Defense Authorization Act for FY2020, Liberian Refugee Immigration Fairness (LRIF). USCIS will accept properly filed applications until 12/20/20. AILA Doc. No. 19122690

RESOURCES

·       Think Immigration: They/Them/Ours: Discussing pronouns with clients.

·       The Collaborators in Honduras: The Girls Who Want to be Mortal: Gang perceptions of women.

EVENTS



1/15/20 NY Counts 2020 State Convening

1/16/20 Resilience 2.0: Next Steps Lawyers Can Take to Make Bouncing Back Part of the Culture

·       1/23/20 Debrief on Mississippi Raid: Lessons Learned and Improving Responses

2/6/20 Basic Immigration Law 2020: Business, Family, Naturalization and Related Areas

2/7/20 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Forms of Immigration Relief 2020

2/28/20 5^th Annual New York Asylum and Immigration Law Conference

7/23/20 Defending Immigration Removal Proceedings 2020

ImmProf

Monday, December 30, 2019

·       Nolan Rappaport (The Hill): Removal of DACA recipients has begun: It didn’t take a crystal ball to see DACA would not end well

·       New Path to Citizenship for Liberians

·       Hispanic voters being overlooked in Democratic presidential campaign

Sunday, December 29, 2019

·       Top 10 Immigration Stories of the Decade

·       From the Bookshelves: All-American Nativism: How the Bipartisan War on Immigrants Explains Politics as We Know It by Daniel Denvir

Saturday, December 28, 2019

·       Trump administration begin to ramp up DACA removals?

Friday, December 27, 2019

·       Congress investigating immgrant detainees’ medical care

·       Taking Private Lands for the Border

·       AP: Immigration Policy Second Biggest News Story of 2019

·       Trump administration chasing immigration judges away?

·       Immigration Judges Asylum Grants & Denials: Fiscal Years 2018-2019

Thursday, December 26, 2019

·       How U.S. Immigration Policy Changed This Year — in 10 minutes

·       In Christmas Day Message, Pope Francis Shines Light On Migrant Suffering

·       Colorado Governor Pardons Immigrant Mother Who Sought Sanctuary

Wednesday, December 25, 2019

·       Santa’s Visa Options

·       Documentary: The Faces of Family Separation

Tuesday, December 24, 2019

·       An Immigrant’s Christmas Eve

·       An Immigrant’s Christmas Eve, 1979

·       How ICE Uses Social Media to Surveil and Arrest Immigrants

Monday, December 23, 2019

·       Immigrant of the Day: Kamaru Usman

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INTERESTING HISTORICAL SIDENOTE: As reported by Jeffrey in his blog, with the retirement of BIA Appellate Immigration Judges Patricia Cole and John Guendelsberger, the only remaining member of the “Schmidt Board” (1995-2001) is Judge Ed Grant. Judge Cole worked with me back in the days of the Legacy INS General Counsel’s Office, as did Judge Molly Kendall Clark who also was one of my Senior Counsel when I was BIA Chair. Judges Cole and Guendelsberger were the last of the “original” 12 members of the “Schmidt Board” invested with me by then Attorney General Janet Reno in the Fall off 1995.

Another historical note: Judge Dornell’s late father Ed Dornell and I worked together at the Legacy INS during the Reagan Administration when he was the Director of Intelligence and I was the Deputy General Counsel/Acting General Counsel.

HAPPY NEW YEAR!🥂🍾🏈😎

DUE PROCESS FOREVER!

PWS

01-01-20

STOMPING ON THE PERSECUTED! — BIA MAJORITY FINDS WAY TO USE “MATERIAL SUPPORT BAR” TO DENY PROTECTION TO THE VICTIMS OF PERSECUTION – Judge Linda Wendtland, Dissenting, Gets It Right! — Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018)!

MATTER OF ACM 3928_0

BIA HEADNOTE:

(1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.

(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.

PANEL: BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, & WENDTLAND

OPINION BY: JUDGE ROGER PAULEY

CONCURRING & DISSENTING OPINION: JUDGE LINDA WENDTLAND

KEY QUOTES FROM MAJORITY:

The Immigration Judge incorporated by reference the respondent’s credible testimony and all the documents submitted at her cancellation of removal hearing. In her August 8, 2016, decision, the Immigration Judge found that the respondent is ineligible for asylum and withholding of removal based on the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act. The Immigration Judge stated that, but for the material support bar, she would have granted the respondent’s asylum application on humanitarian grounds pursuant to Matter of Chen, 20 I&N Dec. 16 (BIA 1989), noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed. However, the Immigration Judge granted the respondent’s request for deferral of removal pursuant to the Convention Against Torture.

KEY QUOTE FROM CONCURRING & DISSENTING OPINION:

In view of our relatively recent holding in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), that the material support bar contains no exception for duress, “it is especially important to give meaning to the statutory limit of ‘material.’ That term calls for [I]mmigration [J]udges, the Board, and the courts to strike a balance written into the Act.” Jabateh v. Lynch, 845 F.3d 332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in the judgment). Individuals arriving in this country from “some of the most dangerous and chaotic places on earth . . . may not have been able to avoid all contact with terrorist groups and their members, but we should not interpret the statute to exclude on this basis those who did not provide ‘material’ support to them,” since “[m]any deserving asylum-seekers could be barred otherwise.” Id. Unlike the majority, which apparently would apply the bar without any meaningful limit, I would not decline to carry out our responsibility to strike the foregoing critical balance.

Nor do I believe that Congress intended to relegate the respondent, who did not afford support that qualifies as “material,” to the statutory waiver process under section 212(d)(3)(B)(i) of the Act, which is intended only for those individuals whose support did meet the threshold materiality requirement.2 And given my view that the respondent’s conduct does not come within the “material support” bar in the first place, I need not reach the question whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.

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Once again, faced with competing possible interpretations of the law, the BIA majority chooses the interpretation most unfavorable to the applicant. So, what else is new?

The majority judges engage in a wooden, lifeless, hyper-technical analysis, devoid of any obvious understanding of either the purpose of refugee laws or the actual human situation of refugees. By contrast, Judge Wendtland shows an understanding of both the human situation of refugees and undesirability and impracticality of construing the law so as to bar deserving refugees or force them to “jump through more hoops.”

Everybody actually agrees that “but for” this obtuse application of the law, this respondent deserves asylum! So, why not just take the readily available course of construing the ambiguous provision in favor of the applicant? Why go out of the way to create bad law and hurt innocent individuals? Why would Congress have desired this absurdly unpalatable result? And, I wouldn’t count on the USCIS under the policies of this Administration to grant a waiver in this case under their even more opaque and politicized processes.

This case also demonstrates a continuing practice of the BIA to render major precedents without considering the case en banc. How many of the other Appellate Immigration Judges agree with Judge Pauley’s decision? How many agree with Judge Wendtland? On which side are Chairman Neal and Vice Chair Adkins-Blanch?

We’ll never know, because today’s Board imposes life or death decisions on respondents and changes the course of the law while allowing the vast majority the Appellate Immigration Judges to hide in anonymity in their “Ivory Tower” chambers, without any accountability or taking any legal or moral responsibility for the decisions that they impose on others. It’s a national disgrace (originating with the bogus “Ashcroft reforms”) that must be changed for the BIA to once again become a credible appellate tribunal.

Due process and fairness to individuals are fictions in today’s broken and biased U.S. Immigration Court system. We shouldn’t pretend otherwise!

PWS

06-06-18

Judge Patricia A. Cole Dissents From BIA Panel Majority’s Rewriting Of The Agfel Definition Of “Prostitution” To “Zap” Respondent – Majority “Dings Ding” in Matter of Ding, 27 I&N Dec. 295 (BIA 2018)

Matter of Ding

BIA HEADNOTE:

(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.

PANEL: BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, WENDTLAND

OPINION BY: Judge Roger A. Pauly

DISSENTING OPINION: Judge Patricia A. Cole

KEY QUOTE FROM MAJORITY:

We disagree with the Immigration Judge and with the case law on which he relied because the term “prostitution” in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D). “It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Evntl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).

KEY QUOTE FROM DISSENT:

I respectfully dissent. I agree with the Immigration Judge’s decision that the respondent’s conviction is not for an aggravated felony under the existing Federal definition of “prostitution.” The majority has crafted a definition of prostitution for purposes of section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value. The majority decision concludes that this newly crafted definition categorically covers the conduct proscribed by the Wisconsin statute at issue in this case, but it notes that the precise contours of the term “sexual conduct” will be decided in future cases. This overly broad definition is supported by limited analysis, and it is contrary to immigration law, the law of the United States Court of Appeals for the Seventh Circuit, and the canons of statutory construction.

The majority does not provide any analytical authority for its definition other than noting that the definition is “similar” to that of Black’s Law Dictionary and providing, without any analysis, a survey of the definitions of “prostitution” from the 50 States and the District of Columbia in 1994. Additionally, the majority does not even discuss the ramifications of its new definition of prostitution for section 101(a)(43)(K)(ii) of the Act, which references the provisions of 18 U.S.C. §§ 2421, 2422, and 2423 (2012), which relate to engaging in “prostitution, or in any sexual activity.”

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Judge Cole’s dissent makes sense to me. Nice to see that occasionally BIA Appellate Immigration Judges stand up for legal constructions that don’t invariably favor deportation of respondents who have been convicted of crimes.

While constructions of immigration statutes often divide Article III judges, all the way up to the Supremes, the BIA’s “Post Ashcroft Purge” jurisprudence has been intentionally bland and one-sided — largely without dissent or transparent deliberation. Moreover, as I have observed before, the BIA’s practice under the Ashcroft “Reforms” and the Obama Administration’s “Go Along to Get Along” approach has been largely to issue published precedents by three-judge panels, rather than en banc.

This allows 80% of the BIA’s permanent judges to avoid expressing a view for against any particular precedent. Indeed, some BIA judges appear hardly at all on “precedent panels,” while others appear frequently. Thus, some BIA judges regularly avoid both possible controversy as well as accountability for their legal positions and votes on critical, life-defining issues. Rather a strange way for a so-called “expert deliberative tribunal” to operate, if I do say so myself.

PWS

05-23-18

ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire

By Paul Wickham Schmidt

Exclusive for Courtside

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HAPPY NEW YEAR!🥂🍾🏈😎

DUE PROCESS FOREVER!

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