“New Due Process Army” (“NDPA”) – Page 14

‼️⚖️🗽ATTENTION: NDPA PRACTICE ALERT: USCIS Announces FY 2025 Diversity Visa (“DV”) Window!

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera

Submitted by Professor Alberto Benitez at GW Law Immigration Clinic:

The entry submission period for the FY2025 Diversity Visa lottery is from 12:00 pm (ET) on October 4, 2023, to 12:00 pm (ET) on November 7, 2023. Please see the attached.

**************************************************

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

(202) 994-7463

(202) 994-4946 fax

abenitez@law.gwu.edu

THE WORLD IS YOURS…

**************************************************

**************************

Thanks my friend!

The window opens,

And the window closes.

🇺🇸Due Process Forever!

PWS

09-30-23

☠️🤮 DEADLY UNFAIR “COURTS” POTENTIAL “DEATH TRIBUNALS” FOR AFGHAN HAZARA REFUGEES — Hon “Sir Jeffrey” Chase Speaks Out: “Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase!”

https://apnews.com/article/afghanistan-deportation-taliban-asylum-us-immigration-court-cabf3bcdec9a62b12f08300d1260cd68

Julie Watson reports for AP:

The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.

Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.

He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.

At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.

“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.

. . . .

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.

But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.

“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.

Chase said the hearing appeared rushed, and he believes the case backlog played a role.

“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”

Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.

John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.

. . . .

*******************

Read Julie’s complete article at the link.

Hazaras are an historically persecuted group in Afghanistan whose already perilous situation has demonstrably worsened under the Taliban. See, e.g., https://www.ushmm.org/genocide-prevention/blog/urgent-action-needed-hazaras-in-afghanistan-under-attack. This case should have been a “slam dunk grant” under a proper application of precedents like Cardoza and Mogharrabi! Additionally, Hazara claims should be routinely grantable under the “pattern or practice of persecution” regulations that EOIR judges are supposed to apply (but seldom do).

No wonder this system builds incredible unnecessary backlogs when it botches the easy grants, wastes time on specious, disingenuous reasons for denial, and allows questionably-qualified judges to run roughshod over due process, the rule of law, and binding precedents.

Here’s additional commentary from “Sir Jeffrey:”

Thankfully, the amazing Steve Schulman at Akin Gump took on Mohamed’s case after his pro se hearing, and Human Rights First provided additional support.

(The Round Table was prepared to file an amicus brief on this one at the Fifth Circuit, but an agreement was reached to reopen the case at the IJ level before briefing was due.)

That the Government agreed to reopen this case basically “says it all” about the absurd result in the original hearing and the bogus “waiver” of appeal.

🇺🇸 Due Process Forever!

PWS

09-29-23

🤯 WRONG AGAIN! — BIA Flubs Divisibility In 3rd Cir. — Pesikan v. Atty. Gen.

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-on-divisibility-pesikan-v-atty-gen

https://www2.ca3.uscourts.gov/opinarch/203307p.pdf

“Petitioner Srecko Pesikan argues that the Board of Immigration Appeals (“BIA”) erred in concluding that his 2018 Pennsylvania conviction for driving under the influence (“DUI”) of marijuana constituted an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act (“CSA”), thereby rendering him removable under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a) (“INA”). We agree and will grant his petition for review. … In sum, because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA. … For the foregoing reasons, we will grant Pesikan’s Petition for Review in case number 21-1262 and will reverse the order for removal.”

[Hats way off to appointed pro bono counsel Bruce Merenstein, Arleigh Helfer and Stephen Fogdall (argued)! Here is a link to the audio of the oral argument.]

Stephen A. Fogdall, Esquire

– Stephen A. Fogdall

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

******************

These are important cases with high stakes! They deserve expert analysis from expert judges.

Eliminating unnecessary Circuit reversals and remands like this would also help address the backlog-building, due-process-denying phenomenon of “Aimless Docket Reshuffling” at EOIR. Avoidable mistakes at the “retail level” are systemically costly to our justice system in more ways than one!

And, remember, that for every EOIR mistake that gets “caught” by the Article IIIs, dozens of these injustices probably go uncorrected! Circuit review is a luxury that isn’t available to most individuals who lose at the BIA level. Even here, Mr. Pesikan would have had no chance at the Circuit except for court-appointed pro bono counsel Stephen A. Fogdall and his team at Dillworth & Paxon, LLP, another luxury unavailable to litigants at the EOIR level.

Moreover, even when Circuit review does take place, the inappropriately deferential standards established by Congress allow (or even require) some Circuit panels to merely sweep glaring injustices under the rug without grappling with the overall constitutional implications of this shoddy, due–process-denying system. Why on earth would “deference” be given or review restricted over the “gang that can’t shoot straight” at EOIR?”

Gang that couldn't shoot straight — Would you give “deference” to these guys?
Theatrical poster from Wikipedia

Congress and the Article III Courts appear unlikely to face up to the need for constitutionally-required reforms at EOIR in the near future. Therefore, as I pointed out yesterday, it’s critical that NDPA experts apply for judicial positions at EOIR to change the system for the better and save lives from “within.” https://immigrationcourtside.com/2023/09/27/🇺🇸⚖%EF%B8%8F🗽🧑⚖%EF%B8%8F👨🏾⚖%EF%B8%8F-attention-ndpa-better-courts-mean-a-better-america-fr/.

🇺🇸 Due Process Forever!

PWS

09-25-23

🇺🇸⚖️🗽🧑‍⚖️👨🏾‍⚖️ ATTENTION NDPA: BETTER COURTS MEAN A BETTER AMERICA, FROM THE “RETAIL LEVEL” TO THE SUPREMES! — The Future Immigration Courts Are Being Formed Today — We Need NDPA All-Stars 🌟 On The Bench! — You Can’t Be Selected If You Don’t Apply (My History Notwithstanding)!

I want you — Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it!
Public Domain

EOIR is looking for “many judges in many locations:”

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/many-immigration-judge-positions-open

https://www.justice.gov/legal-careers/job/immigration-judge-26

**************************

Some folks who should be applying for these jobs tell me they “couldn’t work with such an unfair law.” I say “poppycock.” To a large extent, the law and the unfair results are only as bad as EOIR judges choose make them.

But, it doesn’t have to be that way! For example, you can choose to:

Apply Cardoza-Fonseca, Mogharrabi, Kasinga, A-R-C-G-, and other precedents favorable to applicants fairly and robustly;
Honestly apply the presumption of future persecution set forth in 8 CFR 208.13 and actually put the burden on DHS to rebut it with evidence, not mere conjecture;
Carefully consider the possibility of a discretionary grant of asylum under the regulations (“so-called Chen grant”), even where the government rebuts the presumption of a well-founded fear;
Make realistic, practical, proper credibility determinations based on “the totality of the circumstances and all relevant factors;”
Require only “reasonably available” corroborating evidence;
Actually follow the legal principle that credible testimony, in an of itself, can be enough to grant relief;
Apply the “reasonableness of internal relocation” regulation set forth at 8 CFR 208.13(b)(3) honestly;
Fairly apply the properly generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza and described by the BIA in Mogharrabi to cases where there is no past persecution;
Incorporate the latest scholarship on “country conditions,” rather than “cherry picking” DOS Country Reports looking for ways to deny;
Use the latest body of scholarship on “best interests of the child” in deciding cancellation of removal for non-LPRs;
Schedule cases in a reasonable manner, in consultation with both counsel, to eliminate endemic “aimless docket reshuffling;”
Take measures to promote and facilitate representation of individuals, rather than throwing up roadblocks;
Make ICE counsel do their jobs, rather than doing it for them, particularly in cases where ICE unilaterally declines to appear at the merits hearing;
Use all of your practical skills and knowledge of the law and practice to solve problems and promote efficiency;
Consider all interpretations available to you, not just “defaulting” to the one offered by ICE;
Make careful, analytical, findings of fact, rather than just glossing over facts favorable to the individuals and over-emphasizing or fabricating the facts most favorable to DHS;
Make your “courtroom a classroom” where exceptional scholarship, due process, fundamental fairness, teamwork, practical solutions to human problems, and best practices are promoted and institutionalized.

You might well find, like I did, that being guided by Cardoza and Mogharrabi, sticking to your guns, providing full due process, and faithfully following the law actually leads to grants of relief in the majority of individual hearings. Notably, ICE seldom appealed my grants, and I was rarely reversed by the BIA, no matter who appealed.

I actually did better with my former BIA colleagues as an IJ than I had during my eight years of service on the Board. Indeed, as I sometimes quipped, as an IJ, I finally got that which my colleagues often denied me during my tenure as BIA Chair and an Appellate Judge/BIA Member: deference!

Worried about “life after EOIR!” Yes, there is such a thing!

And, a quick survey of our Round Table of Former Immigration Judges and BIA Members 🛡⚔️ would show everything from partners and of counsel in law firms, professors and educators, major NGO supervisors and attorneys, community activists, consultants and coaches, to those, like me, who claim to be “fully retired and just enjoying life.” The Round Table actually has great credibility with the Federal Courts and the media because, unlike sitting judges and their “handlers,” we can actually speak truth to power outside the courtroom!

Whether you serve for a year or the rest of your career, what you learn as an EOIR judge if you pay attention, will give you a “leg up” and otherwise unobtainable practical knowledge of how America’s most important, yet least understood, court system actually works (or not)!

Every week, almost every day in fact, we see in Federal Court reversals and remands to EOIR and reports from practitioners about unpublished successes the fundamental difference that great litigation and equally “great judging” can make in reaching correct results! Making it happen every day, in every court, at the “retail level,” rather than counting on the uncertainties and limitations of Circuit review, will save lives and change the delivery of justice throughout America!

NDPAers, the “EOIR train” is leaving the station. 🚅 As a nation, we can’t afford the “best and the brightest” of today’s legal profession not to be on board! So, get those “many applications” in for those “many jobs” and let’s see if we can fix this “life or death system” from both the inside and the outside! We won’t know if we don’t try!

🇺🇸 Due Process Forever!

PWS

09-27-23

🤡🤯AS AMERICA SUFFERS, THE GOP CLOWN SHOW ROLLS ON TOWARD OBLIVION!

Clown Parade — The GOP, in full regalia, heads for the U.S. House. PHOTO: Public Domain

Dana Milbank writes @ WashPost:

https://www.washingtonpost.com/opinions/2023/09/22/gaetz-mccarthy-shutdown-house-gop-deadlock/

Martin Luther nailed his theses to a church door. Matt Gaetz displayed his in the men’s room.

Specifically, the congressman (or somebody) left a draft of his “Motion to Vacate” on a baby changing table in a restroom downstairs from the House chamber, where it was found by journalist Matt Laslo. “H. Res. __,” it began. “Resolved, that the Office of Speaker of the House of Representatives is hereby declared to be vacant.”

But Gaetz (R-Fla.) doesn’t need a resolution to “vacate the chair,” as a motion to remove Kevin McCarthy as speaker iscalled. For all practical purposes, the chair is already vacant.

It should have been obvious to all this week, if it wasn’t already, that McCarthy (R-Calif.) is speaker in name only, as his leaderless Republican caucus stumbles toward a government shutdown. Review some of the labels House Republicans hurled at each other over the last few days:

“Clown show.” “Clowns.” “Foolishness.” “Weak.” “Terribly misguided.” “Selective amnesia.” “Stupidity.” “Failure to lead.” “Lunatics.” “Disgraceful.” “New low.” “Enabling Chairman Xi.” “People that have serious issues.” “Pathetic.”

Amid the epithets, Republicans brought the House to another standstill. For the second time in as many weeks, hard-liners blocked the House from even considering a bill to fund the troops. Two days later, they blocked it for a third time. They also forced party leaders to pull from the floor their plan to avert a shutdown — a plan that would do nothing to avert a shutdown even if it passed.

Walking into yet another grievance-airing session among House Republicans this week in the House basement, first-term Rep. Richard McCormick (Ga.) remarked to a colleague: “I think we should call this the Dance of the Dragons.” That was a “Game of Thrones” reference to a civil war in which (spoiler alert) both of the aspirants to the Targaryen throne died, along with several of their children and most of the dragons. McCormick later developed the metaphor for me: “We have a lot of powerful people in one room who are ferocious,” he explained in part, and “it’s going to get even uglier.”

. . . .

********************************

Read Milbank’s full article at the above link.

Dana Milbank
Opinion Columnist
Washington Post

Remember, folks, the problem here is NOT “Congress,” as the so-called “mainstream media” would have you believe! No, it’s the GOP — the anti-American party of nihilism, insurrection, lies, and extremism! McCarthy COULD have had an agreement in hand long before now. all it would take is picking up the phone and working with Leader Jeffries and the Dems to come up with a reasonable funding proposal that could actually PASS the Senate! Indeed, McCarthy earlier cut such a deal with President Biden until he violated it under pressure from a few right-wing members of the GOP “wrecking crew” in an act of supreme cowardice (a McCarthy specialty) and total failure to pursue the common good.

Notably, when the House had a REAL Leader, Speaker Pelosi, there was no shutdown during the Trump Administration — even though there were plenty of issues (Dreamers being a key one) that some Dems would have liked her to “go to the mat” on. When the chips are down, Dems believe in governing; the GOP believes in destroying!

Upcoming generations who don’t want to live in a country where conspiracy theories, cruelty, misinformation, hatred, intolerance, false grievances, vengeance, dehumanization, greed, self-aggrandizement, racism, anti-semitism, grotesque fiscal and moral irresponsibility, misogyny, incompetence, and just plain stupidity replace democracy and governing for the common good had better get energized and busy coming up with a strategy to remove GOP members from every elected position from the national level to local animal control officers. Otherwise, the majority of the next generations will face a bleak future in a nation trying to return to a past that never was with faux “leaders” who demonstrably can’t lead, and don’t even make a pretense of trying to do so.

The “forced birth party” shows little, if any, concern for the well-being of humanity once it has exited the womb!

🇺🇸 Due Process Forever!

PWS

09-26-23

🇺🇸🗽FRANCESCO ISGRO @ VOCE ITALIANA: WE NEED A RETURN TO UNITY & ACTING FOR THE COMMON GOOD: “Rather than disparage fellow humans and our time-honored institutions, we should instead seek to rediscover that lost common ground, where solutions to common problems have resided and still do.”

Francesco Isgro, Esquire
President & CEO of Casa Italiana Sociocultural Center, Inc.
Editor-in-Chief,
Voce Italiana
PHOTO: Linkedin

***********************

Well said, my friend! (You might need to use your computer to enlarge the above reprint.)

🇺🇸 Due Process Forever!

PWS

09-24-23

⚖️🗽 NEED HELP NAVIGATING THE IMMIGRATION COURTS IN ATLANTA, BALTIMORE, HYATTSVILLE, OR STERLING? — The ABA Commission On Immigration Has You Covered With New Hotline!

From the ABA Commission on Immigration:

The ABA Commission on Immigration is launching a Virtual Immigration Court Helpdesk for the Atlanta, Baltimore, Hyattsville, and Sterling Immigration Courts.

The informational flyers are attached here. Please feel free to share with your extended networks.

ABA ICH Flyer ENG.pdf (1)

ABA ICH Flyer SPA.pdf (1)

******************

What a great program! Hope it will be extended to other Immigration Courts in the future!

🇺🇸 Due Process Forever!

PWS

09-23-23

⚖️👩🏼‍⚖️ HON. DANA LEIGH MARKS: DOJ’S PROPOSED RULE ENHANCING IMMIGRATION COURT INDEPENDENCE & EFFICIENCY IS A “BIG DEAL!”

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
Retired U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges, Member Roundtable of Retired Immigration Judges

From the Los Angeles & San Francisco Daily Journal:

https://drive.google.com/file/d/1Fmf6Fqu_Hl8hkIxclUllNEZLQ2LGouU9/view?usp=sharing

The just published proposed regulation is a big deal. It begins with over thirty pages of introductory information debunking the misguided justifications for the previous version of this rule [enjoined by a Federal Court]. Point by point the flawed logic, counterproductive encroachment on judicial discretion, and unnecessary micromanagement [an endemic EOIR problem] is called out.

************************

Read Dana’s complete article at the link.

Many thanks my friend for your incisive, outstanding analysis! It’s astonishing and quite disturbing the amount of absolute “bunk” and racially-focused misinformation DOJ and EOIR foisted on the public under Trump. Indeed, EOIR under Trump pushed out a scandalously false and misleading bogus “fact sheet” smearing asylum seekers and their lawyers. See, e.g., https://immigrationcourtside.com/2019/05/13/special-roundtable-of-former-immigration-judges-blasts-eoir-director-mchenry-for-spreading-lies-misrepresentations-political-pandering-undermining-judicial-independence-and-gro/.

It appears that EOIR is slowly correcting some of the mistakes of the recent past. What’s disappointing and of great concern: 1) Should and could have been “day one stuff;” 2) Judge Dana Marks was on the EOIR payroll on Jan. 20, 2021, and she or a qualified expert like her could and should have been put in charge and empowered to kick tail, take names, clean house, bring in top judicial and administrative talent, and implement long-overdue, still absent, EOIR reforms!

Better late than never? Perhaps, we’ll see. But, I’m not betting the farm on it!

🇺🇸 Due Process Forever!

PWS

09-21-23

🇺🇸🗽😎 — IMMIGRANTS BRING OPTIMISM TO U.S. — New L.A.Times Series Lets Immigrants’ Voices, Often Drowned Out In Debate, Be Heard — “So we set out to ask immigrants to tell us about their lives and put their voices and stories at the forefront.”

By David Lauter

Good morning. It’s Tuesday, Sept. 19. Here’s what you need to know to start your day.

Inside a new Times project on immigrants in America

A suspect was arrested in the killing of a L.A. County sheriff’s deputy

Indulge in Carpinteria’s retro, family-friendly vibe

And here’s today’s e-newspaper

The Times is exploring immigrant stories. Here’s what we’ve learned so far

What if we could give you a window into the lives of one-sixth of the U.S. population? What would we find out?

I’m David Lauter, a senior editor at The Times. That window is what we set out to create with Immigrant Dreams, our project on the lives of America’s huge and growing immigrant population, who make up 1 in 6 adults in the U.S. — close to a record for the past century.

For years, immigration has been one of the hottest of political hot buttons. The U.S. has been stuck in a seemingly unending debate over a broken immigration system, featuring stalemates in Congress, disorder at the southern border and a lot of heated rhetoric.

Much of that debate, however, has ignored the voices of actual immigrants. So we set out to ask immigrants to tell us about their lives and put their voices and stories at the forefront.

That’s not only an important American story, it’s a crucial story for California, which is home to the nation’s largest immigrant population.

We partnered with the nonprofit KFF, formerly the Kaiser Family Foundation, to do a large-scale poll of U.S. immigrants to find out how their lives are going, what they’ve experienced since coming to America and what their expectations are for their futures.

Planning and conducting that poll took almost two years. We tested extensively in advance to make sure we had polling methods that would work to get a representative sample of immigrants. Then we drafted a questionnaire and translated it into nine languages. Pollsters spent more than 13,000 hours interviewing people and mailed more than 75,000 surveys.

You can take some of the poll questions yourself and see how your views compare with the people we surveyed.

Once the data came back this spring, Times reporters and photographers went to work looking for individuals and families with whom we could spend time to illuminate the findings of the survey.

So what did we find out?

Optimism. That’s one of the clearest findings and the theme of our initial story, told beautifully by reporters Brittny Mejia, Jeong Park, Jack Herrera and Tyrone Beason and photographers Irfan Khan, Dania Maxwell and Brittainy Newman. Columnist Gustavo Arellano weighed in, as well, with his own story of immigrant optimism.

And because our poll told us that many immigrants feel they don’t have enough information about how the U.S. system works, our project also includes pieces about important issues like the public charge rule and how to protect yourself against scams.

For the rest of the fall, we’ll be rolling out additional stories about aspects of immigrants’ lives. We hope you’ll come along with us on the journey.

**********************************

The initial report — on how and why immigrants are more optimistic — gives some great profiles and is a “must read” for those interested in getting beyond the myths and outright falsehoods about migration that dominate the airwaves and our political dialogue.

🇺🇸 Due Process Forever!

PWS

09-20-23

⚖️🗽 NDPA ALERT‼️ — Attend The EOIR Stakeholder Meeting For Law School Clinics, Thursday, September 21 @ 2 PM EDT — Free Registration Here!

From EOIR:

EOIR to Host National Stakeholder Meeting for Law School Immigration Clinics

SUMMARY: The Executive Office for Immigration Review (EOIR) invites faculty, staff, and students from law school immigration clinics to attend a national stakeholder meeting focused on pro bono advocacy.

EOIR continues to build upon the guidance in EOIR Director Memorandum 22-01, Encouraging and Facilitating Pro Bono Legal Services, and welcomes the public’s input in evaluating our efforts to increase representation in immigration court proceedings. During the meeting, agency leadership will summarize feedback received during its April series of listening sessions, discuss steps EOIR has taken since those meetings, and share ideas for future initiatives as we collaborate to strengthen pro bono representation in immigration courts.

Following that discussion, agency leadership will welcome stakeholder input regarding ways to increase pro bono representation for Dedicated Dockets.

DATE: TIME: LOCATION:

Sept. 21, 2023

2 p.m. – 3 p.m. Eastern Time

Live via Webex – Meeting Registration

All media inquiries should be directed to the Communications and Legislative Affairs Division at pao.eoir@usdoj.gov.

— EOIR —

Here’s the registration link:

https://eoir.webex.com/weblink/register/rde8d6afe67dcef358a29e879af341b65

***************************

We all know that EOIR is struggling. Unrepresented and under-represented individuals are basically “cannon fodder” for a hopelessly backlogged system where due process, fundamental fairness, and meticulous scholarship are too often afterthoughts, at best.

Insuring that individuals facing this dysfunctional system are well-represented is key to both saving lives and holding EOIR accountable. It also supports those judges at both levels who are fighting to restore due process, fundamental fairness, decisional excellence, and best practices to EOIR.

EOIR is widely known for its lack of transparency. Every nugget of information about the Immigration Court system’s practices, policies, objectives, and operating plans is therefore precious.

Also, giving EOIR honest feedback about some of the “real life” roadblocks and unnecessary challenges (like, for example, endemic Aimless Docket Reshuffling, arbitrary expedited dockets, and courts located inside prisons and other obscure, largely inaccessible, locations) is a critical chance to push back against mindless bureaucracy and suggest effective, practical solutions that enhance, rather than impede, due process.

Unfortunately, few of those shaping EOIR practices have recent experience actually trying to represent pro bono clients in this often “user unfriendly” and unnecessarily chaotic system. (It’s routinely described by experienced practitioners as the “Wild West of American Law.”) This is YOUR chance to learn and to inject a “dose of reality” into an agency that too often operates in a parallel universe.

🇺🇸 Due Process Forever!

PWS

09-19-23

🇺🇸⚖️🏅A LIFE DEVOTED TO JUSTICE: JOSEPH GERALD “GERRY” HEBERT (1949-2023): Voting Rights Icon, Teacher, Community Activist, Inspiration To Upcoming Generations!

https://www.legacy.com/us/obituaries/washingtonpost/name/joseph-hebert-obituary?id=53065154

Joseph Hebert Obituary

Hebert

Joseph Gerald Hebert

Joseph Gerald Hebert (Gerry), Voting Rights Attorney of Alexandria, Virginia passed away at the age of 74 on September 7, 2023.

Gerry was born in Worcester, Massachusetts to Joseph Gerald Laurie Hebert and Adeline Agnes Whitehead Hebert on February 13, 1949. A graduate of St. John’s High School in Shrewsbury, Gerry went on to earn his bachelor’s degree from Stonehill College and Juris Doctor from Suffolk University Law School.

A respected Civil Rights and Voting Rights attorney, Gerry worked in the U.S. Department of Justice’s Civil Rights Division from 1973 to 1994. While at the DOJ, he won acclaim for his work in school desegregation cases and served as the lead attorney in voting rights and redistricting lawsuits, including several cases decided by the U. S. Supreme Court. Post-DOJ, Gerry spent time in private practice specializing in election law and the Voting Rights Act. His expertise led him to the Campaign Legal Center in 2004, serving as Executive Director until 2018, before retiring from the organization in 2021. During this time, Gerry was also an adjunct professor at Georgetown University Law Center and developed a thriving intern program for CLC. He also taught at University of Virginia, American University, and New York Law School. He was awarded the Wasserstein Fellowship at Harvard Law School and Mentor in Residence at Yale Law School. In 2015, Gerry spearheaded the CLC effort to establish the Voting Rights Institute (VRI), a partnership with the American Constitution Society and Georgetown Law, which created opportunities for law students and graduates to learn how to litigate voting rights cases.

Gerry’s advocacy extended beyond his professional career. He served as PTA president at George Mason Elementary School, where he was a fixture in the hallways for years, his voice on the loudspeaker delivering the morning announcements. He worked particularly hard to ensure that families of color were involved in their children’s education, and that the needs of George Mason Elementary were made known to the School Board.

As ASA soccer coach to many of Alexandria’s youth, Gerry shared his own athletic skills, always ending a weekly practice – at the request of the team – punting the ball straight up in the air, multiple stories high.

A man of strong faith and an enthusiastic choir member, Gerry served the Fairlington United Methodist Church community in many capacities including lay leader.

Gerry worked tirelessly to help Alexandrians in need, volunteering with ALIVE! Inc. since 1986. He dedicated his time and talents, serving as ALIVE’s president, director of development, chair of the furniture program, and Last Saturday food distribution coordinator. Earlier this year, Gerry was awarded Volunteer Alexandria’s 2023 Joan White Grassroots Volunteer Service Award for his commitment to ALIVE!’s mission, specifically for his work to open both of ALIVE!’s beautiful and welcoming food hubs, ensuring that Alexandrians maintained their integrity while receiving food and critical services.

Gerry approached his personal life with the same passion and purpose. He was omnipresent in his children’s lives as he filled the roles of brown bag lunch maker, short order breakfast cook, and overprotective parent. He could be found lifting his grandchildren to top the Christmas tree, eating Oreos and drinking straight from the milk carton in the middle of the night, or dancing in the street with Victoria during a red light at the intersection of Braddock and Russell. He would “give you a nickel” if you could name the artist from the 60’s singing on the radio. He’d send you recipes for the perfect pork chop, articles about the latest threat to justice and democracy, and a heads up about recent sunscreen recalls. He was deeply devoted to playing the guitar, discovering the best deal on good wine, and playing the lottery. He never said goodbye without also holding up his hand to sign “I love you.” He had the timing of a stand-up comedian, all the wisdom of a perfect storyteller, and an unfulfilled desire to travel the world. He was just beginning to discover what retirement was like and between the Rock ‘n Roll cruises he took with Victoria, his long ponytail, and his Bohemian pants, he confirmed his family’s suspicion that he really did dream of being the next great American folk singer. He was a lively wedding dancer, a proficient recaller of sports stats, and even attended MLB professional umpire school. Gerry was an expert magician, the friend you were thankful to call yours, and as far as his family knew, he was “the strongest man in the world.”

Gerry is preceded in death by his mother and father.

Gerry is survived by his wife of 37 years, Victoria, his children, Christy Przystawik (Tom Przystawik), Greta Gordon (Jim Gordon), Brooke Harris (Ben Harris), Josh Hebert, and Marlea Hebert (Anthony DiBerardinis). His brother, Tom Hebert (Maria Hebert), and his 10 grandchildren, Gunter, Annika, Amelie, Harper, Sadie, Bailey, Brighid, Adrian, Tyler, and Abe.

A funeral service will be held on Saturday, September 16, 2023 at Fairlington United Methodist Church.

In lieu of flowers donations can be made in honor of Gerry to The Campaign Legal Center, ALIVE, Lawyers’ Committee for Civil Rights Under Law and Fairlington United Methodist Church (music program).

Published by The Washington Post on Sep. 10, 2023.

***********************

Gerry’s son Josh Hebert is one of our son Will’s closest friends, growing up in Alexandria and attending Alexandria City Public Schools together. Our church, Beverley Hills Community Methodist Church, has been part of ALIVE’s “grass roots” programs to make Alexandria a better place to live for families and individuals of all income levels. I also spoke at Fairlington Methodist on immigration and the need for reform at a public forum that Gerry helped organize.

Gerry was one of the former DOJ attorneys to courageously speak out publicly against the appointment of notorious White Nationalist and civil rights underminer then-Senator Jeff Sessions to be U.S. Attorney General under Trump. See.e.g., https://immigrationcourtside.com/2017/01/04/sessions-no-civil-rights-hero-say-former-doj-cvil-rights-attorneys/. Sessions proved to be just as horrible and unqualified for the job as Gerry had warned.

Gerry was an inspiration and role model for the “new generation” of civil rights attorneys dedicated to making equal justice in America a reality rather than an unfulfilled promise!

Yesterday’s “Courtside” post highlighted the words of Justice Ketanji Brown Jackson that embodied many of Gerry’s life values;

And I am confident that, just like generations of Americans before us, we are up to the challenge. Armed with our history, well-prepared by our past, and secure in the knowledge of what we have been through and where we’re headed, we will triumph in the valiant struggle to promote constitutional values and to obtain freedom and justice for all.

Due Process Forever and deep appreciation to a great American who represented “due process in action” and leaves a vibrant legacy for future generations. A life well-lived indeed!

PWS

09-18-23

🤯HOW LONG DID IT TAKE THE USG TO GRANT A “SLAM DUNK” 🏀 ASYLUM CASE OF A MEXICAN JOURNALIST? — 15 YEARS! — No Wonder This Dysfunctional, Unfair System Has Endless Backlogs!

Low Hanging Fruit — Harvesting the “low hanging fruit” — the many clearly grantable asylum cases — has proved remarkably elusive for EOIR — under Administrations of both parties!
IMAGE: Creative Commons 2.0

From The National Press Club:

https://drive.google.com/file/d/1QhiXmsGEBd6YQn8lYieaP8GUt7QiEnWJ/view?usp=sharing

*********************

That Mexico is one of the most dangerous countries in the world for journalists is hardly “rocket science.” 🚀 See, e.g., https://www.nbcnews.com/news/latino/annihilating-journalism-mexican-reporters-work-attacks-killings-rcna14196. Yet, an EOIR Judge was allowed to twice wrongfully deny this “slam dunk” case — on specious grounds such as making the absurd finding that Mr. Gutierrez was not a journalist — over six years before the BIA finally ended the farce!🤡

Even today, there is no BIA precedent to expedite the granting of these meritorious cases and to curb rogue judges from mindlessly denying everything that comes before them (according to TRAC, the IJ in this case had a “facially ludicrous” 95.6% asylum denial record). It’s also no coincidence that AILA attorneys in El Paso, where this case originated, have long complained about anti-asylum bias among the Immigration Judges. See, e.g., https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjphqPxn62BAxW4EVkFHUz3CEkQFnoECBEQAw&url=https://www.elpasotimes.com/story/news/immigration/2019/04/03/complaint-alleges-misconduct-el-paso-immigration-judges/3357416002/#:~:text=The%20complaint%20alleges%20that%20one,reason%20she%20was%20being%20persecuted.&usg=AOvVaw0FywozGcr8pn-K2ytfZkCT&opi=89978449.

So, let’s put this into a real world context. 15 years, two wrong IJ decisions, and two trips to the BIA to complete (actually it’s still not complete, because it was remanded for “background checks,” but that’s another saga), a case that should have taken a well-qualified Immigration Judge about 15 minutes to grant. So, what chance is there that without major leadership, personnel, structural, and substantive changes, EOIR could do “justice” on asylum cases put on an ”expedited docket.” Slim and none, as actual experience shows!

The necessary first step toward meaningful immigration reform is a complete overhaul of EOIR. Without that readily achievable administrative action, no attempt at legislative or regulatory reform can succeed. It’s not rocket science! 🚀 Just common sense, moral courage, and “good government.”

🇺🇸 Due Process Forever!

PWS

09-16-23

🤮 SCOFFLAW WATCH: IN “A-B-III” A.G. GARLAND ORDERED ALL EOIR JUDGES TO APPLY THE BIA’S PRECEDENT MATTER OF A-R-C-G- (PSG/DOMESTIC VIOLENCE) — HIS BIA DIDN’T GET THE WORD, SAYS 3RD CIR — Avila v. Att’y Gen.

Kangaroos — Mob chatter:
“Hey, anyone here know what an ARCG is?”
“No clue.”
“Some kind of boat?”
“Maybe we should ask Noah.”
“Don’t bother. The only rule we follow around here is ‘When in doubt, throw ‘em out!’”
“Isn’t that what the UN Handbook says, that ‘giving the benefit of the doubt’ means to ‘doubt that any benefit will ever be given?’”
“Yup, sounds right to me!”
“I don’t understand it. We’re overtly hostile to asylum seekers and their lawyers, we’ve tilted the playing field against them, yet they still come! Why?”
“Detain, discourage, deny, deport, deter, that’s our mission!”
“Where due process, fundamental fairness, and best practices go to die!”
“Precedents? We only follow the ones unfavorable to respondents!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

From: Ted Murphy
Sent: Thursday, September 14, 2023 10:09 AM
To: AILA Philadelphia List
Cc: Kaley Miller-Schaeffer
Subject: 3rd Circuit Precedent – PSG Honduras A-R-C-G-
Importance: High

Friends,

Please see the attached precedent decision from the 3^rd Circuit today. While the first 16 pages of the 21 page decision focus on CIMT issues, the final 4 pages are worth reading on PSG similar to A-R-C-G- that the BIA ignored.

Here, on the other hand, the BIA did not adhere to

Matter of A-R-C-G-’s requirement to examine Avila’s PSG

within the context of the specific country conditions in

Honduras. The BIA rejected Avila’s PSG for lack of

particularity without considering evidence in the record about

“widespread and systemic violence” against Honduran women,

“inconsistent legislation implementation, gender

discrimination within the justice system, and lack of access to

services.”109 Evidence in the record, including that “[l]ess than

one in five cases of femicide are investigated,… and the

average rate of impunity for sexual violence and femicide is

approximately 95%,” may have been relevant in examining

whether Avila’s proposed PSG was cognizable.110 Just as the

cultural attitudes toward gender were relevant in Matter of A-

R-C-G-, evidence in the record as to the “machismo culture” in

Honduras may be relevant to assessing whether Avila has a

cognizable PSG.111

Moreover, in Matter of A-R-C-G-, DHS conceded that

the proposed group “married women in Guatemala who are

unable to leave their relationship” was sufficient for a PSG

asylum claim.112 Given the similarity between that social group

and “Honduran women in a domestic relationship where the

male believes that women are to live under male domination,”

we must remand for the BIA to provide clarification as to its

application of Matter of A-R-C-G-, and to determine whether

Avila’s proposed PSG is cognizable in light of the specific

country conditions

.

We must also remand for the BIA to consider whether

Avila demonstrated a well-founded fear of persecution on

account of her PSG. The BIA determined that Avila’s PSG did

not “exist independently” of the harm alleged, as required

under Matter of M-E-V-G-113 and Matter of W-G-R-.114 Matter

of M-E-V-G- cites to this Court’s prior precedent in Lukwago

v. Ashcroft,115 which states that a PSG “must exist

independently of the persecution suffered by the applicant for

asylum.”116 However, Lukwago makes clear that in

determining whether a PSG exists independently of the

persecution suffered, the BIA must consider the PSG in the

context both of “past persecution” and a “well-founded fear of

persecution.”117 Here, the BIA did not consider whether Avila

had demonstrated that she had a well-founded fear of

persecution based on her past experiences of abuse and sexual

violence. Accordingly, we will remand for the BIA to consider,

in addition to whether Avila has suffered past persecution on

account of her PSG, whether she has demonstrated a well-

founded fear of future persecution.

In conclusion, on remand, the BIA should (1) clarify,

given the Government’s concession in Matter of A-R-C-G- that

the proposed group was sufficient for a PSG asylum claim, its

application of Matter of A-R-C-G- to the present case, and

consider Avila’s PSG in the context of evidence presented

about the country conditions in Honduras and (2) provide

guidance in applying both Matter of A-R-C-G- and Matter of

M-E-V-G- with respect to past persecution and a well-founded

fear of future persecution on account of membership in a PSG

Case was argued by Attorney Kaley Miller-Schaeffer.

Best regards,

Ted

Theodore J. Murphy, Esquire

Murphy Law Firm, PC

https://www2.ca3.uscourts.gov/opinarch/221374p.pdf

*****************************************

Once again, the BIA fails to follow its own precedent favorable to the respondent! Yet, in a Dem Administration they get away with mocking the rule of law in life or death cases, in a “court system” that the Dems “own.” Why?

WHO applies precedents and rules can be as important as the precedents and rules themselves! Failure to properly and uniformly apply legal rules that favor asylum seekers has become a chronic problem at EOIR. It’s one that Garland has yet to effectively and comprehensively address!

Many congrats to Kaley Miller-Schaefer and Murphy Law!

Kaley MIller-Schaefer ESQ — Kaley Miller-Schaefer ESQ
Partner
Murphy Law
PHOTO: Linkedin

🇺🇸Due Process Forever!

PWS

09-15-23

😢☠️ DACA: THE CRUELTY IS THE POINT — Right Wing Judges, GOP Politicos Take Aim @ America’s Future By Dumping On Dreamers!🤮

OLAFIMIHAN OSHIN & Rebecca Beitsch report in The Hill:

https://thehill.com/regulation/court-battles/4203346-federal-judge-again-declares-daca-immigration-program-unlawful/

A federal judge for the second time found the DACA program unlawful, but held back from ordering the deportation of the nearly 600,000 people who remain in the country as “Dreamers.”

The Deferred Action for Childhood Arrivals program, first crafted with a 2012 memo under the Obama administration, was likewise found unlawful by federal District Court Judge Andrew Hanen in a similar ruling in 2021.

“While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” Hanen wrote in the 40-page ruling.

“The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation.”

Given earlier challenges to the DACA program’s creation through a memo, the Department of Homeland Security (DHS) in 2022 underwent formal rulemaking to solidify the basis for the program.

But Hanen found while the government followed the law in undergoing notice and comment rulemaking, the new rule essentially carried the 2012 memo into a formal rule without addressing prior issues criticized by the court.

Last year the Fifth Circuit Court of Appeals, before remanding the case to Hanen, found broader issues with DACA, saying the policy was inconsistent with immigration processes laid out under the Immigration and Nationality Act.

Hanen pointed to that in his Wednesday ruling, noting that while the record underlying the new rule showed DACA to be beneficial to both recipients and the U.S. “DHS did nothing to change or resolve the substantive problems found by this court or the fifth circuit.The decision earned swift backlash from immigration advocates and spurred familiar calls for Congress to act.

. . . .

The decision earned swift backlash from immigration advocates and spurred familiar calls for Congress to act.

“While expected, today’s court ruling is devastating. It impacts hundreds of thousands of immigrant youth and their loved ones, who have already endured years of uncertainty stemming from politicized attacks on DACA,” Kica Matos, president of the National Immigration Law Center said in a statement.

“Congress has failed to pass a permanent legislative solution, and it is urgent that they act now. We cannot allow court rulings to continue to upend the lives of hundreds of thousands of immigrant youth whose home is here.”

The ruling comes months after a coalition of nine GOP-led states asked Hanen to end the federal program, referring to the program as “unlawful” and “unconstitutional.”

. . . .

**********************

Read the complete article at the link.

Once you get beyond GOP White Nationalist politicos and judges, DACA legislation is widely popular across the political spectrum. Yet, the GOP is happy to defy the common good, and, sadly, Dems are afraid to leverage and elevate DACA to a “Tier One” issue! So, a generation of younger talent that American needs for the future continues to “twist in the wind!” Stupid, cruel, wasteful!

🇺🇸 Due Process Forever!

PWS

09-14-23

🍂FALL FOLLIES: BIA FUMBLES BASIC STANDARDS FOR FUTURE FEAR AND INTERNAL RELOCATION, SAYS 6TH CIRCUIT — Lin v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0205p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-future-fear-internal-relocation-lin-v-garland

“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”

[Hats off to Henry Zhang!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

*******************

PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”

HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”

This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?

🇺🇸 Due Process Forever!

PWS

09-13-23

Submitted by Professor Alberto Benitez at GW Law Immigration Clinic:

🇺🇸Due Process Forever!

Related posts:

Julie Watson reports for AP:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

Related posts:

EOIR is looking for “many judges in many locations:”

🇺🇸 Due Process Forever!

Related posts:

Dana Milbank writes @ WashPost:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

From the Los Angeles & San Francisco Daily Journal:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

From EOIR:

🇺🇸 Due Process Forever!

Related posts:

Related posts:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

Related posts: