NLPR Cancellation of Removal – immigrationcourtside.com

⚖️ FOLLOWNG SCATHING REPORT ON ABUSE OF KIDS IN IMMIGRATION COURT, EOIR ANNOUNCES SOME REFORMS — Rekha Sharma-Crawford Reports!

Rekha Aharma-Crawford — Rekha Sharma-Crawford ESQUIRE
Partner and Co-Founder Sharma-Crawford Law
Kansas City, KS

Rekha writes on LinkedIn:

A major step towards acknowledging that the best interest of the child must play a critical role in immigration cases. This was an idea I raised over 10 years ago with my friend and colleague, the brilliant Lory Rosenberg. Later the idea again was put forward with two additional brilliant colleagues, Paul Schmidt and Susan Roy. Sometimes it takes a very long time, but the right approach can’t be hidden forever. So pleased to see it is finally seeing some daylight.

Here’s the Memorandum from EOIR Director David L. Neal:

https://www.justice.gov/d9/2023-12/dm-24-01.pdf

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @ GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

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

As noted by my Round Table colleague “Sir Jeffrey” Chase, our Round Table has spoken out about the need for a separate Immigration Court system for children:

As you know, our Round Table signed on to a letter of support for proposed legislation to create a Children’s Immigration Court.

[Director Neal’s statement is] a positive administrative development.

Here’s my take:

While progress is always welcome, this statement shrouds the concept of “best interest of the child” (“BIC”) with legal gobbledygook and bureaucratic doublespeak. (P. 3 of Neal Memo under “Legal Standards”).
Here’s what a clear, correct statement on BIC would look like:

BIC, regardless of whether or not presented by a “Child Advocate” or incorporated in a “Best Interests Determination” (“BID”), can be directly relevant to issues of removability. For example, evidence of removability obtained by methods that clearly conflict with the BIC could be found unreliable or the result of “egregious misconduct” for the purposes of determining removability.

The BIC can also be highly relevant to issues of eligibility for relief. For example, a government or society that deprives certain children of all meaningful educational oportunities might well be engaging in persecution.

In addition, in NLPR cancellation cases, the BIC could be persuasive, even determinative, evidence that removal of a parent will result in “exceptional and extremely unusual hardship” to a USC or LPR child or children.

3) Finally, since the EOIR Director is an administrator, not a quasi-judicial official, his or her policies have a distinct “you can take it or leave it” effect in Immigration Court. Therefore ameliorative statements from the Director, no matter how well-intended, are only effective if the BIA is willing and able to insist on and enforce “best practices” on Immigration Judges, preferably through precedent decisions and reassigning cases away from those IJs who show repeated contempt for due process and best practices.

Unfortunately, the current version of the BIA has, as a body, shown neither much sympathy nor concern for the substantive and due process rights of asylum seekers and other immigrants in Immigration Court. Unless and until Garland “cleans house” and appoints a BIA where all Appellate Judges are immigration/human rights experts laser focused on due process and best practices in Immigration Court — and not afraid of enforcing them uniformly in individual cases and incorporating them in binding precedents — the Director’s latest somewhat ameliorative statement is likely to be as toothless in practice as past efforts.

To a large extent, that’s a “nutshell” of why Garland’s Immigration Courts are in dire failure that threatens our entire democracy.

Unfortunately, that we are three years into this Administration and Garland is still bumbling along with a BIA that largely represents the mistakes and shortcomings of his predecessors suggests that waiting for him to “get religion” on the need for expertise, due process, fundamental fairness, and best practices at EOIR will continue to be an exercise in “Waiting for Godot!”

Immigration practitioners waiting for Garland to institute “due process, fundamental fairness, and best practices” as the sole mission of his EOIR “courts.” It could be a long wait. Very long! Too long!
Naseer’s Motley Group in The Rose Bowl
Merlaysamuel
Creative Commons Attribution-Share Alike 3.0
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December 8, 2011

🇺🇸 Due Process Forever!

PWS

12-22-23

🤯🤯🤯 BACK-TO-BACK TRIPLE HEADERS FROM COURTSIDE! — 1) ⚖️👩🏽‍⚖️ SUPREMES TAP TWO GROUPS OF IMMIGRATION CASES FOR OCT ‘23 DOCKET! 2) Garland’s DOJ Continues To Take Positions “Least Favorable To Due Process For Immigrants” Before High Court, Even As 3rd Cir. Slams BIA On Notice, An Issue Unnecessarily “Headed Up” For The 3rd Time!🤯 3) Dems’ Fecklessness On Courts Takes Center Stage! ☹️👎🏼

Dean Kevin Johnson reports from ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2023/07/photo-courtesy-of-us-supreme-court-the-2022-term-ended-last-week-but-there-already-are-new-immigration-cases-on-the-supr.html

The 2022 Term ended last week but there already are new immigration cases on the Supreme Court’s docket for the 2023 Term.

Law 360 reports that the Supreme Court on the last day of the 2022 Term agreed to review 1) if Board of Immigration Appeals decisions denying cancellation of removal for exceptional hardship are subject to judicial review and 2) consolidated cases on the sufficiency of notice in removal proceedings.

Here are the cases:

Wilkinson v. Garland

Issue: Whether an agency determination that the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i) (and not subject to judicial review).

Campos-Chaves v. Garland (consolidated with Garland v. Singh).

The Court continues to deal with the ripple effects of Pereira v. Sessions (2018), which addressed the sufficiency of notice in removal proceedings.

Issue: Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen’s request to rescind that order.

KJ

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

Aleksandra Gontaryuk ESQ
Managing Partner
AG Law
Newark, NJ
PHOTO: AG Law

From: Aleksandra Gontaryuk
Sent: Monday, July 3, 2023 4:29 PM
To: AILA New Jersey Chapter Distribution List <newjersey@lists.aila.org>
Subject: Precedential Decision — 3rd Circuit

https://www2.ca3.uscourts.gov/opinarch/212291p.pdf

Hot off the presses. No supplemental notice allowed to cure defective NTA unless there is a change or postponement of time and place in NTA. In this case, my client had a defective NTA, so 3rd Circuit ruled there can be no change or postponement from a defective NTA in the first place when DHS didn’t issue new NTA!! In absentia remanded.

[The case is Madrid-Mancia v. AG, available in full text at the above link.]

Aleksandra N. Gontaryuk, Esq.

AG Law Firm

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

Alfred E. Neumann — Actually, Dems need an AG who WILL WORRY about systematic denials of due process, fundamental fairness, and failure to install best-qualified progressives in the disastrously dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons

The notice issue presented by Campos-Chaves and Singh has been to the Supremes, albeit in different forms, twice before recently. The BIA/DOJ position has been emphatically “stuffed” by the Supremes both times! Yet, here we are again with the same backlog-enhancing, due-process-denying nonsense, this time from a Dem AG who was supposed to act like a “real” Federal Judge, not a “stooge” for DHS Enforcement.

The long and short of it is that this third trip to the Supremes on the notice issue was avoidable. That is, if Garland had appointed immigration experts, individuals not afraid to enforce the statute even where it benefits the individual, as it often will if properly and fairly interpreted, to the BIA, long a hotbed of anti-immigrant interpretations of law. Garland continues to enable a system “packed” with anti-immigrant and anti-asylum judges promoted under Trump and largely retained by Garland. This should outrage all progressives!

Dems continue to fecklessly “wring their hands” about the sharp right turn of the Supremes and the lower Article IIIs and the predictable decimation of individual rights. It all occurred in plain sight and with plenty of advance warning from the GOP as Dems diddled away their chances to stop it.

Dems aren’t going to be able to expand the Supremes, nor are term limits likely to happen. Both would require GOP support, which will not be forthcoming now that they have achieved their long-promised “takeover!” Discussing it is a waste of breath and brain cells. It also diverts attention from the Dems ongoing failure at EOIR.

The Dems best practical chance of reforming the Federal Courts would be to start “at the critical retail level” with what they control and could change tomorrow: The U.S.Immigration Courts housed (however improperly) in the DOJ. Right now they are an embarrassing mess of bad judging, anti-immigrant bias, worst practices, grotesque mismanagement, insurmountable backlogs, and hare-brained gimmicks.

Every day, in this and other forums, we see inspiring examples of the type of extraordinary progressive, creative, courageous legal talent available “in the marketplace.” They are the ones Garland should be recruiting and putting on the EOIR bench at both appellate and trial levels.

We would get an immediate, long overdue, improvement in the quality and efficiency of justice at EOIR. Correct, scholarly precedents would have carry-over into other areas of law and even gain international traction.

And, Dems would be building a “long bench” of “tried and true” candidates for Article III positions in the process! Who knows if and when a chance like this will come again? Yet, Garland and the Dems are squandering it, damaging democracy and humanity in the process! Talk about turning a “win-win” into a “lose-lose!” It’s something that Dem politicos excel at!

Dems failure to institute progressive reforms and bring in expert progressive judges at the court they do control makes the rest of their pronouncements on Federal Court reform meaningless babbling!

Tower of Babel — Dems “babble on” about Federal Court reform as GOP scores “real life” victories over individual rights and equity. It’s a waste of time, and “task avoidance” by Dems that diverts attention from the major Federal System they own 100% and operate (very badly): The U.S. Immigration Courts @ EOIR! — “Towel of Babel” By Pieter Bruegel The Elder
Public Domain

Pay no attention to Dems disingenuous complaints about the Supremes and “Trumpy” lower court judges until they demonstrate the ability and willingness to reform EOIR!

🇺🇸 Due Process Forever!

PWS

07-07-23

⚖️ “STANDARDS [SHOULD] MATTER” — Judge Rosemary Pooler (Dissenting) “Schools” Colleagues On How Standards Of Review Are Improperly Manipulated To Favor DHS!

Hon. Rosemary S. Pooler
Senior Circuit Judge
Second Circuit
PHOTO: Law.com

https://www.ca2.uscourts.gov/decisions/isysquery/7c64a6f4-549e-4ec9-8278-1e538e4b4bd7/2/doc/19-2044_21-6533_complete_opn.pdf

Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges

POOLER, Circuit Judge, dissenting:

2 Standards matter. A standard of review is the essential mechanism that

3 defines an appellate court’s proper role in reviewing the record presented. All

4 appellate courts must adhere to the proper standard of review. The Board of

5 Immigration Appeals (“BIA” or “the Board”) is no exception. Here, the BIA

6 applied a standard that substantially deviated from the clear error standard and

7 improperly made factual findings that contradicted those made by the

8 Immigration Judge (“IJ”). The BIA’s failure to adhere to the proper standard is

9 “the type of error that requires remand.” De La Rosa v. Holder, 598 F.3d 103, 108

10 (2d Cir. 2010). Accordingly, I respectfully dissent.

11 This Court lacks jurisdiction to review purely discretionary decisions by

12 the BIA, see 8 U.S.C. § 1252(a)(2)(B)(ii), but we retain jurisdiction over

13 “constitutional claims or questions of law,” Noble v. Keisler, 505 F.3d 73, 77 (2d

14 Cir. 2007) (quoting § 1252(a)(2)(D)). When reviewing decisions, “[t]he Board will

15 not engage in de novo review of findings of fact determined by an immigration

16 judge. Facts determined by the immigration judge, including findings as to the

17 credibility of testimony, shall be reviewed only to determine whether the

18 findings of the immigration judge are clearly erroneous.” 8 C.F.R. §

1

1 1003.1(d)(3)(i). “[W]hen the BIA engages in factfinding in contravention of 8

2 C.F.R. § 1003.1(d)(3)(iv), it commits an error of law, which [the Court has]

3 jurisdiction to correct.” Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010); see also

4 Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir. 2006) (explaining that the Court will

5 vacate BIA decisions “that result from flawed reasoning or the application of

6 improper legal standards”). Though the BIA “may review questions of law” and

7 “all other issues” on appeal de novo, see § 1003.1(d)(3)(ii), it is explicitly barred

8 from “engag[ing] in factfinding in the course of deciding cases” aside from

9 taking “administrative notice of facts that are not reasonably subject to dispute,”

10 § 1003.1(d)(3)(iv)(A).

11 Here, the BIA recited the precise legal standard at the beginning of its May

12 2019 decision. Special App’x at 7 (citing § 1003.1(d)(3)). But we do not simply

13 “rely on the Board’s invocation of the clear error standard; rather, when the issue

14 is raised, [the Court’s] task is to determine whether the BIA faithfully employed

15 the clear error standard or engaged in improper de novo review of the IJ’s factual

16 findings.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see also Chen v.

17 Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 514 (2d Cir. 2006) (noting that

18 despite “cit[ing] the proper legal standard at the outset of its decision, [the BIA]

2

1 failed to apply this deferential standard of review”). Despite its invocation of the

2 clear error standard, the BIA did not ultimately apply this standard of review to

3 Oscar Hernandez’s case. Merely reciting the standard does not transform the

4 BIA’s impermissible factfinding into a permissible exercise of discretion. Such lip

5 service should not suffice.

6 The majority opinion characterizes the BIA’s impermissible factfinding as a

7 simple “de novo reweighing of the equities based on the facts found by the IJ.”

8 Maj. Op. at 3. That is not the case. Without identifying any of the IJ’s findings as

9 clearly erroneous, the BIA implicitly rejected the IJ’s factual findings and

10 substituted the facts found by the IJ with its own factual findings. If the BIA

11 rejects the IJ’s findings, we expect it to “supply cogent reasons for its rulings,”

12 which the BIA failed to provide. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016).

13 The BIA completely disregarded the IJ’s credibility determination when it

14 concluded, contrary to the IJ’s findings, that it “d[id] not find [Hernandez’s]

15 explanation convincing” regarding the circumstances of his 2016 arrest. Special

16 App’x at 10. This divergence in characterization of the 2016 incident was central

17 to the BIA’s decision. In its attempt to parse out the definition of “convincing,”

18 the majority claims the BIA did not overturn the IJ’s factual findings, arguing the

3

1 BIA’s intended use of the word meant it was not “persuaded” by Hernandez’s

2 explanation, not that his testimony was not “truthful.” Maj. Op. at 11. This is an

3 unconvincing distinction. Next, the majority suggests the BIA doubted that

4 Hernandez warranted discretionary relief, not the truthfulness of his testimony.

5 Id. at 12. That clarification, however, does not do much to support the majority’s

6 argument. The BIA’s “de novo” reconsideration of whether Hernandez merited a

7 favorable exercise of discretion was premised on its factual determination that he

8 had “continued to engage in violent behavior” following his first arrest and

9 conviction in 2009. Special App’x at 10. The only evidence cited for this

10 determination was that Hernandez’s “most recent arrest in 2016 . . . included

11 abusive behavior toward his spouse”—a characterization directly at odds with

12 the IJ’s findings. Special App’x at 10.

. . . .

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

You can read the full decision, including Judge Poolers’ full dissent, at the link.

As Judge Pooler points out, manipulation of the standards of review can be used either to improperly substitute judgement on fact-findings (BIA) or too avoid critical review of BIA’s actions (Circuit majority).

Thanks to Dan Kowalski over at LexisNexis for passing this along.

🇺🇸 Due Process Forever:

PWS

04-23-23

⚖️”CONVENTIONAL WISDOM” SAYS YOU CAN’T WIN IMMIGRATION CASES IN THE 5TH CIR. — NDPA SUPERLITIGATOR RAED GONZALEZ SAYS “POPPYCOCK!” — He Buries Garland’s Backlog-Building Scofflaw BIA Again On Pereira Issue! — Will They Ever Learn? — Don’t Count On It!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-equitable-tolling-victory-lara-canales-v-garland

Dan Kowalski reports for LexisNexis Immigration Community:

Daniel M. Kowalski

19 Jan 2023

equitable tolling

Unpub. CA5 Equitable Tolling Victory: Lara Canales v. Garland

Lara Canales v. Garland

“This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. … [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion.”

[Hats off once again to superlitigator Raed Gonzalez!]

Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

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

Thanks Raed for continuing to lead the fight for justice in “America’s worst ‘court’ system” in America’s most right-wing Circuit!

THIS “any reason to deny mentality” at EOIR, still being promoted by Garland’s BIA, combined with incredibly inept and unprofessional “administration” of EOIR by DOJ, is why the Immigration Court is broken and being crushed by unending backlogs, daily chaos, and a travesties of justice and sound government!

The Biden Administration pretends like the problem doesn’t exist and/or isn’t important enough to fix. But, I can assure you that they are WRONG! “Dead wrong” in some cases!

In addition to the public manifestations of dysfunction and unprofessionalism like this case, I get regular e-mails from NDPA members relating their own EOIR horror stories and venting their frustrations with the arrogant “above the fray/what me worry about humanity and those defending it” attitude of Garland and the rest of the Biden Administration responsible for the ongoing EOIR catastrophe!

I strongly doubt that Garland, Monaco, Gupta, Prelogar, and the rest of the DOJ “clueless crew” responsible for this indelible blot on American justice would last 60 days if required to practice exclusively before EOIR under the unfathomably horrible, due-process-denying conditions they have promoted and enabled over their past two years of horrible legal “leadership!” As aptly stated by one practitioner who recently contacted me:

“Things in Immigration Court will never be the same, but I at least expected attention to due process. Nope, IJ’s are more interested in getting the cases done.”

How is this appropriate conduct from a Dem Administration that claims to value human lives, racial justice, and the rule of law, but whose actions at EOIR (and elsewhere in immigration and human rights) say the exact opposite? Poorly functioning as EOIR was when I retired in 2016, the “anecdotal consensus” from practitioners seems to be that it’s measurably worse now under Garland’s inept leadership! “Come on man,” this just isn’t right!

After all this time (17 years since the BIA’s supposedly “final” order), this case is still not complete! It’s back at the BIA for yet another chance for them to deny on specious, legally incorrect grounds. One possibility is to misapply the “equitable tolling” concept mentioned by the 5th Circuit. The BIA has a long, disgraceful record of resisting and mis-applying equitable tolling.

Or, perhaps they will attempt to invoke their recent precedent in Matter of Chen, 28 I&N Dec. 676 (BIA 2023) https://www.justice.gov/eoir/page/file/1561876/download to deny reopening for “failing to make out a prima facie case for relief on the merits.”

Chen is a case where the the respondent moved to reopen to apply for NLP cancellation having attained the required 10 years of physical presence by reason of the BIA’s two wrong-headed precedents overruled by the Supremes in Pereira v. Sessions and Niz-Chavez v. Garland. Having twice screwed up in a way that created tens of thousands of potential remands and reopenings, someone not familiar with the BIA might have expected them to set forth clear, practical, generous criteria that would encourage IJ’s to consistently reopen cases where the respondent now had the qualifying time and relative(s) in light of the problems caused by the BIA itself. After all, that’s basically the direction in the BIA’s long-standing precedent Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) (reopening where the record “indicate[s] a reasonable likelihood of success on the merits, so as to make it worthwhile to develop the issues at a hearing”). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjWzY36pdn8AhVgF1kFHTcxChEQFnoECBkQAQ&url=https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3281.pdf&usg=AOvVaw2Ntzlp4MuxfupmjaDIn7i6

Since “exceptional and extremely unusual hardship” is inherently a fact-bound issue requiring a hearing to develop those facts, one might expect most cases to be routinely reopened.

But, the BIA took a different tack in Chen. While acknowledging that the hardship asserted by the respondent fell within the zone of those “recognized” by the BIA, they found “she has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”

While the BIA claimed to be “following” Matter of L-O-G-, they actually appear to have violated the teaching of that case that: “In considering a motion to reopen, the Board should not prejudge the merits of a case before the [respondent] has had an opportunity to prove the case.” (21 I&N Dec. at 419). That should particularly be true when the BIA itself has had a major role in creating the situation where reopening is sought.

By providing only a negative precedent (they didn’t even bother to “bookend” this with a precedential example of a grantable motion) to a system already suffering from a “culture of denial,” the BIA aggravated an long-festering problem. One can expect many IJ’s to view Chen as an “invitation to deny” the many Pereira/Niz Chavez motions to reopen in the offing for specious reasons or indeed for “any reason at all.” I expect talented NDPA warriors like Raed to make mincemeat out of the BIA’s wrong-headed attempt to minimize the “Pereira-induced damage” they have generated.

Like most of the misguided efforts of the 21st Century BIA, this attempt to cut corners, summarily deny, and NOT provide full due process and real hearings is likely to take more time and waste more resources than simply giving respondents the fair merits hearings to which they are legally entitled in the first place. But, that’s exactly what this Dem Administration has wrought at EOIR. “More of the same, instead of the promised change!”

🇺🇸 Due Process Forever!

PWS

O1-21-23

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @ GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

Lory Rosenberg — Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

Here it is “Time for a Child Welfare Approach to Cancellation of Removal:”

https://lnkd.in/gaDgHRD8

19110103h (1).pdf

drive.google.com

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

So honored to collaborate with my colleagues Lory, Sue, and Rekha on this. Grateful to AILA for publishing. This resulted from lively conversations and brainstorming when we served as faculty at the Immigration Trial College sponsored by Rekha’s firm in Kansas City in April 2022!

We all hope that this “practical scholarship” will give ideas to practitioners on how to argue for a “child centered approach.” That the BIA is one of the American authorities NOT following this better approach, supported by compelling empirical evidence, is a testament to how badly broken and in desperately needing reform our Immigration Courts are today. They aren’t going to change on their own. So, start arguing for a better approach, now!

There’s also some “insider BIA history” in here from those of us “expelled” for our aggressive, progressive judicial views on due process, fundamental fairness, and best practices! Namely, Lory and me!

🇺🇸Due Process Forever!

😎🗽⚖️👍🏼

PWS

11-16-22

💨 FROM THE ROCKIES & THE HIGH PLAINS, THE WINDS OF TRUTH BLOW AWAY THE BS & SHOW HOW GARLAND’S BIA & THEIR SCOFFLAW INTERPRETATIONS HAVE BUILT BACKLOGS — “This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in,” says 10th Cir. in Estrada-Corona v. Garland!

Kangaroos — It’s easy guys, we just do what DHS Enforcement and our political bosses want and we can keep hopping around forever! Backlogs! Ha, the bigger the bigger they get, the more “secure” our jobs!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

Estrada-Cardona v. Garland

“The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. … This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in. … After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong. … Because Congress unambiguously replaced the final-order rule with the stop-time rule, the BIA’s application of the final-order rule was legal error. Petitioner continued to accrue continuous physical presence after the immigration judge issued the order to voluntarily depart. … [W]e hold that because the BIA seems to have considered change-in-the-law equitable tolling arguments before, the BIA abused its discretion in this case by failing to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” … We cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion. … On remand, the Government is free to argue that Petitioner should not be granted sua sponte reopening or equitable tolling. This opinion is expressly limited to two conclusions. First, the BIA’s application of the final-order rule was legal error. Second, the BIA’s explanations for denying sua sponte reopening and equitable tolling constituted, as a procedural matter, an abuse of discretion. For the reasons stated herein, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion.”

[Hats way off to Jennifer M. Smith and Mark Barr!]

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

“For years, if not decades, the Government sent aliens “notices to appear” which failed to include all the information required by § 1229(a)—like the “time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). For countless aliens, the only obstacle to being eligible for cancellation of removal was the Government’s position that a time-and-place-to-be-set notice to appear still triggers the stop-time rule. In Pereira, the Supreme Court rejected the Government’s atextual interpretation and held a “putative notice to appear that fails to designate the specific time or place of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. In one fell swoop, the Supreme Court cleared the way for many aliens, like Petitioner, to seek cancellation of removal.

But the Government quickly erected a new hurdle.”

The BIA could and should have prevented this debacle by insisting from the git go that the statute (“the law”) be followed by DHS and EOIR. Instead, at the behest of DHS, and perhaps to prevent tens of thousands of long-term residents who had received statutorily defective notices from seeking relief, the BIA misinterpreted the statute time after time.

The real stupidity here is that the requirement the BIA was pretzeling itself to avoid was hardly “rocket science” or burdensome: Serve a notice containing the actual date, time, and place of the hearing! One might ask what purpose is served by a so-called “Notice to Appear” that doesn’t notify the individual of where and when to appear?

Moreover, when the BIA started issuing their incorrect precedents, DHS and EOIR had a then-existing system — called “interactive scheduling” — that would have complied with the statute. The problem was that the “powers that be” at DOJ, EOIR, and DHS consciously decided NOT to use that system.

The apparent reason was the belief that complying with the law might have interfered with DHS arbitrarily filling the Immigration Courts with large “numbers” of cases to meet various enforcement “priorities” set from “on high.” Rather than doing its job, the BIA chose time and again to “go along to get along” with this nonsense!

Over and over, EOIR lets bogus DHS or Administration “enforcement priorities” or “improperly using the legal system as a deterrent” subvert due process, fundamental fairness, best interpretations, and practical solutions!

And, although Biden and Harris campaigned on a platform of bringing the rule of law and rationality back to immigration, the absurdity and illegality continues under Garland. He even sent OIL in to waste the time of the Article IIIs by mounting essentially frivolous defenses to the BIA’s malfeasance.

Perhaps worst of all, in addition to being denied timely justice, individuals and their lawyers dealing with Garland’s dysfunctional EOIR often are falsely blamed for causing the backlogs that are the primary result of DHS/EOIR incompetence and political meddling by unqualified bureaucrats. The latter don’t understand what really happens in Immigration Court and how to properly, fairly, and efficiently administer such a large and important court system.

The backlogs will continue to grow and the US justice system will crater because of bad immigration decisions generating skyrocketing litigation. Garland must replace the BIA with real expert appellate judges committed to fair, humane, and reasonable interpretations of immigration and human rights laws — without regard to whether those correct interpretations will be “career enhancing” or “career preserving.” In other words, judges who put justice before personal or institutional “survival.” Competent, expert, independent-minded judicial administrators with the guts to keep DOJ and DHS bureaucratic meddlers “at arm’s length” are also required.

Folks who could do the job are out here. But, that’s the problem! They belong in the key judicial judicial and administrative positions at EOIR where they can put any end to the due-process denying, backlog building dysfunction.

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Everyone committed to the future of American justice should be asking themselves why Garland hasn’t recruited and hired the right “Team Due Process” for EOIR! American justice can’t afford more of Garland’s inept, “go along to get along,” “afraid to say no to DHS enforcement” BIA and the rest of the EOIR “Deadly Clown Show” largely left over from past, failed Administrations!

🇺🇸 Due Process Forever!

PWS

08-20-21

⚖️NDPA SUPERSTAR BEN WIN-OGRAD WINS A BIGGIE IN 4TH ON IJ CONDUCT — Tinoco Acevedo v. Garland

Dan Kowalski reports for LexisNexis Immigration Community!

CA4 on IJ Conduct: Tinoco Acevedo v. Garland

Tinoco Acevedo v. Garland

“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!]

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

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

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?

🇺🇸 Due Process Forever!

PWS

08-13-22

⚖️🗽🇺🇸 SUNDAY, FEB. 27: SUPPORT THE “YOUTH BRIGADE” OF THE NDPA IN THEIR INSPIRING EFFORT TO “CLAW” A BETTER FUTURE FOR AMERICAN FAMILIES WHO WON THEIR CASES, BUT STILL AWAIT STATUS! — They Met The Highest Burden In Court, But The Arbitrary 4,000 Numerical Limit Keeps Them “In Limbo” & From Fulfilling Their Full Potential For America!

Visit us at clawcampaign.org

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WhatsApp Image 2022-02-24 at 1.32.05 AM.jpeg Invitation twitter.jpeg

From: Anam Aasem <aasem@leyruta.org>

Date: Thu, Feb 24, 2022 at 12:36 PM

Subject: [washdc] Invitation to CLAW “cancellation and life after winning” launch party

To: AILA Washington DC Chapter Distribution List <washdc@lists.aila.org>

Good Afternoon fellow colleagues,

We would like to cordially invite you to the launch party of CLAW, “Cancellation and Life after Winning” at the CLAW headquarters located at 11710 Bowman Green Drive, Reston, VA 20190 on Sunday, February 27, 2022 at 4 pm.

What is CLAW?

CLAW is a campaign initiated by teenager and immigration activist, Neela Nesari. The campaign aims to bring about a change to increase the 4000 limitation cap on 240A cancellation cases.

Neela is initiating an awareness month about this issue in March of 2022 and needs your help. The goal is to educate, organize and advocate for legislative changes to the immigration system with respect to the defense of cancellation of removal.

We are very excited to announce that CLAW has secured the enthusiastic support of renowned former immigration judge and former chairman of the BIA, Honorable Judge Paul Schmidt, who will be the guest of honor at CLAW’s launch party.

We look forward to your support for this worthy cause. As immigration attorneys and advocates, we know too well that a 42b cancellation case doesn’t just end at the Individual Hearing and our clients face a long road ahead before they can become permanent residents. Why not do something about it?

Please RSVP to support@clawcampaign.org.

Refreshments will be provided.

Regards,

Anam Aasem, Esq.

Supervising Attorney

Leyruta & Associates, PC

(Offices in Herndon, Falls Church, Richmond, Harrisonburg)

Office: 703-796-0801

Fax: 703-796-0802

www.leyruta.org

*Admitted to the New York State Bar.

*Practice outside of NY limited to Federal Immigration Law.

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

Unfortunately, in the bizarre and counterintuitive world of U.S. immigration law and our broken Immigration Courts, winning your case, no matter how satisfying, is “only half the battle!” These amazing young people understand how unfair and counterproductive that is and are “walking the walk, not just talking the talk.” Come be inspired by folks who believe in and act for a “Better America” for all of us!

Hope to see you there on Sunday!

🇺🇸Due Process Forever!

PWS

02-24-22

🇺🇸🗽⚖️NDPA ALERT: ELIMINATE THE CANCELLATION OF REMOVAL CAP! — Join Neela Nes’s Petition To Lift the Cap & Donate To Immigration Reform — Watch Neela’s Inspirational Video About “American Families In Limbo!” — End Injustice To Our Immigrant Communities!

Here’s the link to 1) sign Neela’s petition; 2) watch her very impressive video; and 3) donate (only if you choose, of course, not required to do 1 & 2):

https://www.change.org/p/alexandria-ocasio-cortez-remove-the-green-card-annual-cap

Neela is the daughter of my friend, Northern Virginia Immigration Lawyer Yousef Nesari, whose firm appears in the Arlington Immigration Court on a regular basis.

I’ve helped lawyers with some cancellation cases since retirement. The unnecessary delays, inconsistent decisions, and human toll caused by failure to do better is simply appalling. An obvious example is the Government’s dilatory actions and litigation that took the “stop time” rule unsuccessfully to the Supremes twice, rather than just dong things fairly, correctly, and according the law in the first instance. Talk about “low hanging fruit” among the ways the Biden Administration and Congress could “declutter the Immigraton Courts” while making America a better place by allowing more immigrants to reach their full potential!

🇺🇸🗽Good luck, Neera, and Due Process Forever!

PWS

08-21-21

⚔️🛡ROUND TABLE FILES LATEST AMICUS ON NIZ-CHAVEZ ISSUE @ BIA!

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

Here’s the full brief, drafted by our fearless leader “Sir Jeffrey” Chase:

BIA Niz-Chavez Amicus18078 Final

HERE’S A “KEY QUOTE” FROM THE CONCLUSION:

For the reasons provided above, in absentia orders involving proceedings commenced through a defective NTA are rendered invalid by Niz-Chavez. This is true whether the Board ultimately determines that the decision impacts the Immigration Courts’ jurisdiction, or is in the alternative a claim-processing rule.

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

Thanks so much, “Sir Jeffrey,” my friend and colleague!

Unfortunately, the recent practice of the BIA has been to construe Supreme Court decisions favoring respondents narrowly against them in Immigration Court. Thus, the BIA has needlessly protracted litigation, produced conflicting results, and lessened justice, all while dramatically increasing backlogs. We’ll see whether that practice, apparently designed to appease and please DHS Enforcement and litigators at the DOJ, holds true here.

🇺🇸Due Process Forever!

PWS

08-11-21

Rekha writes on LinkedIn:

Here’s the Memorandum from EOIR Director David L. Neal:

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

Here’s my take:

🇺🇸 Due Process Forever!

Related posts:

Dean Kevin Johnson reports from ImmigrationProf Blog:

🇺🇸 Due Process Forever!

Related posts:

Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges

🇺🇸 Due Process Forever:

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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Here it is “Time for a Child Welfare Approach to Cancellation of Removal:”

🇺🇸Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community!

CA4 on IJ Conduct: Tinoco Acevedo v. Garland

🇺🇸 Due Process Forever!

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Hope to see you there on Sunday!

🇺🇸Due Process Forever!

Related posts:

🇺🇸🗽Good luck, Neera, and Due Process Forever!

Related posts:

Here’s the full brief, drafted by our fearless leader “Sir Jeffrey” Chase:

HERE’S A “KEY QUOTE” FROM THE CONCLUSION:

🇺🇸Due Process Forever!

Related posts: