Matter of Castillo-Perez – immigrationcourtside.com

THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!

She was a Leader of the NDPA before there was an NDPA! Now Michelle Mendez and her CLINIC Team are giving you “the skinny” on how to combat EOIR’s “Raging War on Due Process!”

Friends,

Wanted to share with you two new CLINIC resources:

Practice Pointer: Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019)

FOIA Disclosures on In Absentia Removal Numbers Based on Legal Representation

An immigration judge may issue an in absentia removal order if the Department of Homeland Security, or DHS, establishes by clear, unequivocal and convincing evidence that the respondent had written notice of the hearing and is removable as charged on the Notice to Appear. There are many reasons why a respondent may fail to appear at a removal hearing, including lack of notice of the hearing, sickness, a breakdown in transportation, limited or no English knowledge, or because the respondent is a child without the help of a responsible adult who can assist them in getting to the hearing. As documented in the report Denied a Day in Court: The Government’s Use of in absentia Removal Orders Against Families Seeking Asylum, CLINIC learned about these reasons firsthand while representing 46 families released from detention and successfully challenging their in absentia removal orders. Perhaps the main factor for failing to appear at scheduled hearings in immigration court is the presence or absence of legal counsel to orient the respondent through the layers of government bureaucracy and the complex immigration system.

On November 18, 2019, CLINIC submitted a Freedom of Information Act, or FOIA, request to the Executive Office for Immigration Review, or EOIR, seeking data on the number of in absentia removal orders issued based on legal representation status. CLINIC requested three sets of in absentia order data: the total number of in absentia removal orders issued since 2008, the number of in absentia orders issued to Unaccompanied Children, or UACs, since 2008, and the number of in absentia orders issued to families classified by EOIR as “Family Unit,” FAMU, cases since November 16, 2018. On March 13, 2020, EOIR responded with a three-tab Excel spreadsheet of raw in absentia removal order data. CLINIC has calculated the in absentia removal order raw data into percentages.

Here are some key takeaways from the data:

Although, according to EOIR statistics, the current overall representation rate is 65 percent for all pending cases, those who are unable to secure representation are at extraordinary risk of receiving in absentia removal orders. 92.6 percent of those with in absentia orders issued in fiscal year, or FY, 2020 were unrepresented.

Although, according to EOIR statistics, the current overall representation rate is 68 percent for all UAC pending cases, UACs who are unable to secure representation are also at extreme risk of receiving in absentia removal orders. 88 percent of those with in absentia orders issued in fiscal year FY2020 were unrepresented.

Since 2008, the percentage of unrepresented respondents with in absentia removal orders has been at least double that of in absentia orders of removal issued to represented respondents.

Since 2008, at least 70.8 percent of UACs who were issued in absentia orders of removal were unrepresented and, so far this fiscal year, the unrepresented rate for UACs who received in absentia orders of removal has been the highest ever, at 88 percent.

The number of in absentia removal orders issued by EOIR to unrepresented respondents in FY2020 surpassed the total number of in absentia orders issued to unrepresented respondents in FY2019 in just the first five and a half months of FY2020.

EOIR has issued more in absentia removal orders in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.

Total in absentia removal orders from FY2008 through FY2016 were 246,893. Total in absentia removal orders from FY2017 through FY2020 (through March 13, 2020), were 267,696

EOIR has issued more in absentia removal orders to UACs in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.

Total in absentia orders of removal issued to UACs from FY2008 through FY2016 were 20,123. Total in absentia removal orders issued to UACs from FY2017 through FY2020 (through March 13, 2020), were 26,228.

During the date range covered by the data (FY2008 through FY2020 Q2), immigration judges issued the fewest number of in absentia removal orders in FY2012, the year that DHS announced DACA. During FY2012, DHS officially launched the prosecutorial discretion program in November 2011 and reviewed many pending removal proceedings to identify low-priority cases meriting favorable exercises of prosecutorial discretion.

Most immigration courts saw a decrease in in absentia orders of removal for unrepresented noncitizens in FY2012 compared to FY2011.

Unrepresented UACs suffered a huge jump of in absentia removal orders from FY2014 (1,701) to FY2015 (5,836). This hike in in absentias for UACs occurred concurrently with the increase in UACs fleeing El Salvador, Guatemala and Honduras, and arriving in neighboring countries and at the U.S.-Mexico border.

89.6 percent of all family units who received an in absentia removal orders from November 16, 2018 to September 30, 2019, were unrepresented.

Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in unrepresented FAMU cases during this period: 4,108 (which translates into 93.8 percent of the total in absentia removal orders issued by this court).

Of all the immigration courts, the Miami Immigration Court issued the second most in absentia removal orders in unrepresented FAMU cases during this period: 3,347 (which translates into 89.5 percent of the total in absentia removal orders issued by this court).

94.2 percent of all family units who received in absentia removal orders from October 1, 2019 to March 13, 2020, were unrepresented.

Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,931 (which translates into 95.62 percent of the total in absentia removal orders issued by this court).

Of all the immigration courts, the Atlanta Immigration Court issued the second most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,662 (which translates into 98.27 percent of the total in absentia removal orders issued by this court).

Oddly, several immigration courts that oversee only detained dockets, including the Elizabeth Detention Center, recorded in absentia removal orders during the FOIA time period.

In FY2020, immigration judges have issued more in absentia removal orders than any prior year since 2008, and we are only five and a half months into the federal fiscal year.

Of all the immigration courts, the Harlingen Immigration Court has recorded the most unrepresented in absentia removal orders overall in FY2020 so far: 8,357.

Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders overall in FY2020: 753.

Of all the immigration courts, the Miami Immigration Court has recorded the most unrepresented in absentia removal orders for UACs in FY2020: 430.

Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders for UACs in FY2020: 73.

Thanks for helping us share these!

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

Embracing the Gospel value of welcoming the stranger, CLINIC promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs.

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Now, it’s hardly “news” that there is a strong positive correlation between legal representation and appearance in Immigration Court. That information came to light way back in the Obama Administration and has consistently been reinforced by data that contradicts the lies about failures to appear put out on a regular basis by regime officials.

Given the clear correlation, the best way to make a fair due process system function would be if the Government worked hand in hand with NGOs, charitable organizations, local bar associations, and others involved in providing pro bono representation to insure that at least all asylum applicants and children are represented before the Immigration Courts. Due Process and fundamental fairness would be served and the in absentia rate would crater. In other words, due process with efficiency, an achievable “win-win!”

Instead, the Trump regime, through both EOIR and DHS, has made a concerted attack on the right to counsel in a transparent attempt to increase the number of in absentia orders and “speed up the deportation railroad” that EOIR now runs as its “one and only mission.”

How does something masquerading as a “court” system conduct a “deportation railway?” It takes lots of complicity and supposedly responsible public officials and citizens intentionally “looking the other way” and studiously ignoring the obvious!

I hope that advocates will be able to use the data provided by CLINIC to expose to the Article III Courts and Congress the rampant fraud, waste, abuse, and just plain “malicious incompetence” of EOIR and DHS (is there really a difference these days? Not apparent to most of us who follow the “Star Chambers” with regularity.).

Remember, moral cowardice and intellectual dishonesty often begin with picking on the most vulnerable and defenseless among us. And what follows is likely to be unspeakably bad, based on history!

Thanks, Michelle, my friend, for all you and CLINIC do.

Due Process Forever!

PWS

03-29-20

BARR’S TWO LATEST PRECEDENTS CONTINUE TO ERODE IMMIGRATION JUDGES’ DISCRETION & INDIVIDUALS’ ABILITY TO AVOID DEPORTATION — Matter of Castillo-Perez & Matter of Thomas & Thompson!

Matter of Castillo-Perez: https://www.justice.gov/eoir/page/file/1213196/download

Key section:

For the reasons set forth below, I affirm the Board’s order. I conclude that, when assessing an alien’s good moral character under INA § 101(f), 8 U.S.C. § 1101(f), evidence of two or more DUI convictions during the relevant period establishes a rebuttable presumption that the alien lacked good moral character during that time. Because the Attorney General may only cancel removal of an alien who has been a person of good moral character during a 10-year period, see INA § 240A(b), 8 U.S.C. § 1229b(b), such evidence also presumptively establishes that the alien is not eligible for that relief. Here, because the evidence of the respondent’s efforts to rehabilitate himself is insufficient to overcome this presumption, the Board correctly vacated the immigration judge’s decision to grant cancellation of removal.

Matter of Michael Vernon Thomas & Matter of Joseph Lloyd Thompson: https://www.justice.gov/eoir/page/file/1213201/download

Key section:

The INA assigns clear immigration consequences to an alien who has been convicted and sentenced for a state crime, yet the Board has adopted multiple tests that permit state courts to change those results well after the fact. Although a state court may alter a state conviction for appropriate reasons under state law, the state court does not have the authority to make immigration-law determinations. In view of these considerations, I conclude that the Pickering test should apply to state-court orders that modify, clarify, or otherwise alter the term of imprisonment or sentence associated with a state-court conviction. As a result, such alterations will have legal effect for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding, but not if they are based on reasons unrelated to the merits, such as rehabilitation or immigration hardship. Matter of Cota-Vargas, Matter of Song, and Matter of Estrada must therefore be overruled.

Alexei Woltornist

Public Affairs Officer

Department of Justice

Cell: (202)598-5281

Office: (202)514-2016

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Matter of Castillo-Perez effectively precludes most individuals with two (or more) DUIs from getting cancellation of removal. Obviously, the AG perceived this to be a significant problem. I don’t know how many cases like this are actually granted. Perhaps it would allow the BIA and the IJs to decline to reopen more cases if the Respondent could not show prima facie evidence that he or she could overcome the “presumption.”

Matter of Thomas & Thompson restricts a fairly common device used to avoid the harsh immigration consequences of a criminal conviction. Criminal court judges and even prosecutors are often willing to make slight “after the fact” sentence modifications to avoid deportation in sympathetic cases. Under this ruling, that will only work if there is a “non-immigration” reason for the modification — much more difficult to establish.

Taken together these cases are part of a continuing effort by the AGs under Trump to 1) limit the ability of Immigration Judges to grant discretionary relief based on hardship or equities, and 2) make it more difficult for individuals to avoid deportation. It might also allow Immigration Judges to deny more requests for relief summarily, without full hearings to consider all the equities.

To me, neither change seems “astounding” in and of itself. Rather, they are part of a continuum of efforts to restrict discretion and make it more difficult for individuals to avoid deportation based on equities in the U.S.

Notably, the Trump AGs have never intervened to rule in favor of an individual. All of their certification rulings favor DHS enforcement.

This is notable in a system where the prosecutor selects, directs, and can fire or reassign the judges. Not surprisingly, the vast majority of published precedents already favor DHS enforcement. Now, the prosecutor apparently intends to systematically overrule or limit those few precedents that have given individuals hope of a favorable resolution of their cases.

PWS

P10-26-19

WHITAKER APPEARS POISED TO CARRY ON SESSIONS’S ATTACKS ON IMMIGRATION COURTS, DUE PROCESS, REFUGEES! — “Certifies” Two New Cases On One Day!

Hon. Jeffrey Chase reports:

The Acting AG, in some twisted take on Ernie Banks (“Let’s play two!) just certified two cases to himself:

Matter of L-E-A-, in order to determine “Whether, and under what circumstances, an alien may establish persecution on account of membership in a “particular social group” under 8 U.S.C.

§ 1101(a)(42)(A) based on the alien’s membership in a family unit.”

and

Matter of Castillo-Perez, to determine(1) In connection with an application for cancellation of removal under 8 U.S.C. § 1229b(b), what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?

(2) What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?

(3) What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 U.S.C. § 1229b(b).

The Acting Attorney General ordered that the case be stayed during the pendency of his review.

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Go on over to the EOIR website for more information: https://www.justice.gov/eoir

The BIA is rapidly becoming irrelevant. But since the Acting Attorney General isn’t an expert in immigration laws, his decisions should get no deference from the real courts. And, then there is the question of whether he really is the Acting Attorney General . . . .

Stay tuned.

PWS

12-03-18

Due Process Forever!

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