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Rodriguez v.Garland, 5th Cir., 09-27-21, published
RODRIGUEZ V GARLAND, 5TH ON NIZ
PANEL: Higginbotham, Willett, and Duncan, Circuit Judges.
OPINION: Judge Patrick Higginbotham
KEY QUOTE:
The initial NTA did not contain the time and date of Rodriguez’s hearing. The BIA found that the NTA combined with the subsequent NOH containing the time and place of Rodriguez’s hearing “satisfied the written notice requirements of [8 U.S.C. § 1229(a)],” directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear that subsequent notices may not cure defects in an initial notice to appear. The BIA applied a “legally erroneous interpretation[].”23
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Judge Higginbotham was appointed by President Ronald Reagan. Even conservative Article III Judges aren’t as anxious to snub the Supremes as the BIA.
After all, the BIA works for the Attorney General, not the Supremes. So, who cares whether their decisions comply with the rulings of the Article III Courts, so long as their political “handlers” at the DOJ are pleased with the pro-DHS outcome! That’s what happens when a “captive court” is encouraged to view itself as an extension of their “partners” at DHS enforcement, carrying out the political agenda of their DOJ superiors who control their paychecks and their career destiny!
Wow! It took fewer than three business days for Garland’s latest venture into obtuse anti-immigrant decision-making at the BIA, Matter of Arambula-Bravo, to hit a brick wall! In the 5th Circuit, no less! Back in the “old days” of the “Legacy INS,” it was a very bad sign when we couldn’t “sell” a position to the 5th Circuit!
“Courtside” saw this coming a mile away! https://immigrationcourtside.com/2021/09/25/bia-going-for-trifecta-already-rebuked-twice-by-supremes-for-ignoring-statutory-definition-of-notice-to-appear-bia-chooses-to-snub-high-court-again/
Have to wonder if Judge Garland would have been so sanguine with the dissing of the Supremes by the BIA if he had actually become “Justice Garland?”
As my esteemed colleague Judge “Sir Jeffrey” Chase noted, the position adopted by the 5th Circuit in Rodriguez:
is the same argument we [the “Round Table”] made in our recent amicus brief to the Board – in a published decision, the 5th Cir. granted a PFR and vacated the Board’s decision denying a motion to rescind an in absentia order where there was no proper service due to a defective NTA under Niz-Chavez.
By failing to replace the BIA with better qualified progressive expert judges who will issue correct precedents (even when they might benefit immigrants) and require “best practices” in the now-totally-dysfunctional Immigration Courts, Garland is further building backlog by generating thousands of unnecessary remands and reopenings. How long will it take him to reach the 2 million case mark?
“Bogus dedicated dockets,” gross misuse of the discredited “Title 42” rationale to deny due process, increased use of “expedited removal,” proposals to “rubber stamp” asylum and credible fear denials, badly skewed pro-enforcement interpretations that throw the fate of hundreds of thousands of cases into the Circuits and the Supremes aren’t going to solve the problem!
Never underestimate the adverse effects of bad judging, particularly in a high volume system where incorrect precedents result in wrong decisions in hundreds of cases every day! Conversely, you can’t overestimate the positive potential of progressive expert judges who would get the results correct at the “retail level;” force some badly needed quality control, discipline, and consistency at both EOIR and DHS; and solve problems rather than creating them!
Sadly, Garland doesn’t “get it!” And that will be a continuing unmitigated disaster for our democracy and our justice system! Such a lost opportunity!
PHOTO: Wikipedia Commons
🇺🇸Due Process Forever!
PWS
09-28-21
