"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Clarence Thomas Hikes Price of Supreme Court Decisions to Keep Pace with Inflation
By Andy Borowitz @ The New YorkerThomas
Andy Borowitz Political Satirist The New Yorker
WASHINGTON (The Borowitz Report)—Citing “unfortunate economic realities,” Clarence Thomas is hiking the price of Supreme Court decisions to keep up with inflation.
The jurist disclosed his new rate card in a mass e-mail sent to more than a hundred super-donors.
“I have tried to keep my prices reasonable, but, as inflation proves more stubborn than predicted, I have no choice but to adjust my rates accordingly,” he wrote.
“Sadly, the days of shredding civil rights in exchange for ten private-jet flights are over,” he added.
It remains to be seen whether the billionaires who received Thomas’s e-mail will tolerate his steeper prices or whether they will explore a budget option such as Neil Gorsuch.
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Predictably, no public hearings were held on the Justice’s sudden rate hike, which blindsided many right wing billionaires with business before the Court! “We believed in good faith that Clarence & Ginni were bought and paid for at least until the end of the upcoming term,” complained one super donor. “I mean, if the guy demands any more private flights to fancy vacation retreats, we’ll probably have to consider buying him his own private jetliner. Perhaps, he should spend at least a little more time in his chambers in D.C. spouting originalism and obstructing justice! After all, that’s what we’re paying him for!”😨**
Unhappily, in the days of GOP mega-corruption, satire has become almost a lost art.
🇺🇸 Due Process Forever!
PWS
08-11-23
** The above paragraph is fictionalized. Any resemblance to any real person, persons, organizations, and/or situations is purely coincidental and entirely unintended.
BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.
Saban-Cach v. Atty. Gen.
“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”
[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]
Stephanie Norton CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law PHOTO: Seton Hall Law website
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Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?
The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:
The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”
Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!
The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!
That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”
So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?
The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.
We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.
Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.
Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.
The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!
This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?
“Justice” Star Chamber Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”
Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”
“When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'” PHOTO: Clown Civertan.jpg, Creative Commons License
Amanda Frost Professor UVA Law Author, “You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers “ PHOTO: UVA Law
Justice Clarence Thomas has openly flouted the federal law that requires all federal judges, including Supreme Court justices, to recuse themselves from cases in which they cannot be impartial: He has participated in a case in which his wife, Ginni, undeniably has an interest. For a long time, it has felt like there is nothing to be done about this—conventional wisdom says that short of impeachment, Supreme Court justices are immune from penalties for their misconduct. But that is wrong.
Thomas’ eight colleagues have the tools to protect the court’s integrity: They can publicly censure him, bar him from being the decisive vote in cases in which he should have recused, and take away his power to author majority opinions. Whether they will take action is a different story, which may explain why the court’s reputation is at a historic low.
But Thomas, who has long played fast and loose with recusal laws, has finally gone too far. The issue came to a head last month, when the Supreme Court refused to block the House committee investigating the Jan. 6 attack on the Capitol from obtaining Arizona GOP Chair Kelli Ward’s phone records. In January 2021, Ward had orchestrated an alternative slate of electors (which included herself) in an effort to subvert the election of Joe Biden as president. Thomas participated in the court’s decision, casting a dissenting vote, even though his wife was intimately involved in these events.
Chances are you heard nothing about this. That’s because the decision was part of the court’s “shadow docket”—orders issued without hearing or written decision—and so it garnered little public attention.
But it should have, because Thomas’ participation in the case was a flagrant violation of the federal law requiring recusal from cases in which it is “known by the judge” that his spouse “ha[s] an interest that could be substantially affected by the outcome.” His vote also transgressed that statute’s broader provision requiring disqualification in “any proceeding in which [a judge’s] impartiality might reasonably be questioned.”
Ginni Thomas’ connection to the case is not in question. She has actively tried to overturn Biden’s election in Arizona and other states. In December 2020, Ginni Thomas sent letters to 29 Arizona lawmakers urging them to “fight back against fraud” and select a “clean slate of Electors” after Biden won the election. She also sent numerous text messages to President Trump’s chief of staff demanding he overturn the election, and attended the rally on the Ellipse on Jan. 6, though she left before the attack on the Capitol. This past September, the Jan. 6 committee subpoenaed and interviewed Ginni Thomas, and she repeated then her unfounded belief that the 2020 presidential election was stolen.
Without question, Ginni Thomas has an “interest that could be substantially affected by the outcome” of the Jan. 6 committee’s subpoena of Ward’s phone records. Also, without question, Justice Thomas knew it when he cast his dissenting vote to bar disclosure.
The eight other justices know it, too. Yet so far, they have done nothing about a fellow justice’s blatant violation of a federal law designed to protect the integrity of the court on which they serve. Understandably, the justices are reluctant to police their colleagues. But Justice Thomas’ extraordinary conduct calls for an extraordinary response.
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Read Amanda’s full article at the link.
Failure of one of America’s (supposedly) “top judges” to comply with basic ethical and legal rules undermines democracy! That’s doubly true when the litigation at issue involves an ex-President who has made it abundantly clear that he doesn’t believe the rules apply to him. That’s the same ex-Pres who recently treasonously claimed that the Constitution should be set aside because he lost the 2020 election by more than 7 million votes and can’t accept that truth!
Was Merrick Garland AWOL during required training on legal and judicial ethics? Judging from how he runs “America’s worst court system” — where due process, fundamental fairness, and best practices go to die — we have to assume that that he thinks he has “risen above” the need to comply with ethical requirements! PHOTO: Wikipedia Commons
These are very graphic examples of Garland’s inexcusable failure to end the “haste makes waste, anything goes culture” @ EOIR — encouraged by Sessions and Barr but completely unaddressed by Garland!And, I guarantee this is just “the tip of the iceberg.” For every one of these outrageous errors caught by a Circuit, dozens are probably wrongfully denied relief and illegally ordered deported in Garland’s dysfunctional, due process denying, deportation assembly line!
But, beyond that, Garland’s failure to “clean house” at EOIR and hire qualified, expert, professional leaders, judges, and administrators is an ongoing national disgrace — one that is eating away the foundations of our justice system.
Here’s a “real life snapshot” from my “Morning Mailbox:”
I got 15 individual hearing notices in two days for October 2022. Right now the firm has 47 [Individual Hearings] in October for 4 attorneys to handle. A lot of the hearings we never even got notice for, we just randomly have been checking the portal and that’s how we are finding out. Once we do find out we are always about a month or less away from the hearing date. We are going to try to file motions to continue but who really knows what they are going to do about it. Also, I had an [Individual Hearing] with Judge _________ the other day, and he said that Respondents’ attorneys are having a hard time. He said he had a master that he had to schedule for an [Individual Hearing], and the Respondent’s counsel told him if he scheduled her Individual Hearing within the next 6 months she was going to commit suicide. He seemed really concerned for the attorneys. Hopefully this calms down, because the hearings are piling on and quite honestly no one has the manpower to do all of the [Individual Hearings] in especially such short notice.
This is insane, inexcusable, and totally uncalled for! Aimless Docket Reshuffling gone wild!
In what real “court” system is a judge “required” to schedule a hearing that he knows is beyond the ability of the lawyer to handle at the appointed time. That’s an ethical violation! Who is behind this mess? If the “buck stops at the top,” why isn’t Garland under under investigation for “operating a system” that clearly violates judicial and professional ethics?
Q: What happens when comedy 🎭morphs into tragedy☠️?
“Petitioner Rodolfo Josue Tinoco Acevedo appeals an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of removal. Because the BIA failed to address whether Tinoco Acevedo’s case should be remanded to a new immigration judge (“IJ”) under Matter of Y-S-L-C-, 26 I. & N. Dec. 688 (BIA 2015), we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand to the BIA for further proceedings consistent with this opinion. … Rather than opine as to the exact grounds on which the BIA decided that the applicant was entitled to a new hearing before a new IJ in Matter of Y-S-L-C-, we remand for the BIA to interpret its precedent and address Tinoco Acevedo’s argument in the first instance. … we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand for the BIA to consider whether Tinoco Acevedo is entitled to a new hearing before a different IJ because the initial IJ’s conduct—both during and following the hearing—failed to satisfy the high standard expected of IJs under Matter of Y-S-L-C-. PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.” [Note: The IJ was Roxanne C. Hladylowycz.]
[Hats off once again to IRAC superlitigator Ben Winograd!]
Yet another example of the BIA not being familiar with and applying their own precedents where they could be favorable to the respondent. Any old boilerplate BS will do as long is the result is “dismiss and remove.”
It’s one thing for the BIA to articulate “high standards” for IJ conduct in Matter of Y-S-L-C-. It’s quite another to consistently enforce them where the lives of migrants are at stake!
It was a particularly bad idea for the BIA to spring this haphazard “good enough for government work” approach when Ben Winograd is appellate counsel. Winograd knows the BIA and 4th Circuit precedents better than most BIA judges. And, unlike the latter, he’s willing to stand up for immigrants’ legal rights!
It would be better for Garland and American justice — not to mention those seeking justice in Immigration Court, too often in vain — if brilliant, due-process-oriented “practical scholars” like Ben Winograd replaced the “holdover BIA judges” who aren’t up to the job of “guaranteeing fairness and due process for all.” Remarkably, there was a time in the past when that long disregarded judicial essential was the “vision” of EOIR.
Ironically, the Article III Judges of this 4th Circuit panel (Chief Judge Gregory, Circuit Judges Motz and Wynn) understand the critical requirements for EOIR judging better than AG Garland! That’s a problem (although, concededly, outside the “World of EOIR” Garland has had his best week as AG)!
This opinion was written by Chief Judge Roger Gregory. He continues to be a leader among Article III Judges who take due process and immigrants’ rights seriously! He’s also someone who “gets” the clear connection between immigrant justice (or, in too many cases lack thereof) and racial justice.
With the Chief Immigration Judge position now vacant, Judge Garland has a golden opportunity to appoint a “Judge Gregory clone” to that critical position. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=30193&action=edit. That would also be a wise course for Garland to take to replace the current glaringly inadequate leadership at his failing BIA! How about Chief Appellate Immigration Judge/Chairman Ben Winograd?
