🗽⚖️😎👍 ANOTHER “W” FOR THE GOOD GUYS 😇 — ROUND TABLE 🛡️⚔️ ON THE WINNING TEAM AGAIN, AS BIA REJECTS DHS’S SCOFFLAW ARGUMENTS ON NOTICE! — Matter of Luis AGUILAR HERNANDEZ — “Sir Jeffrey” 🛡️ Chase Reports!

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

A Victory before the BIA!

Hi All: I hope you are not getting tired of all the winning. Today, the BIA issued a precedent decision on the whole Pereira and Niz-Chavez jurisdictional issue involving service of a defective NTA (link attached) in which our Round Table submitted an amicus brief drafted for us by our own Sue Roy.And the BIA actually agreed with us!!!

The holding:

The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistentwith the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).

Here’s the link to the full decision:

https://www.justice.gov/d9/2024-01/4071.pdf

Of course, our brief was not acknowledged in the Board’s decision.

A thousand thanks to Sue and to all in this group who have repeatedly signed on in support of due process.

As a reminder, we still await a decision from the Supreme Court on whether Pereira and Niz-Chavez extend to in absentia orders of removal. Oral arguments in that case were heard earlier this month, and our brief was mentioned in response to a question by Chief Justice Roberts.

Best, Jeff

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

Hon. Susan G. Roy
“Our Hero” 🦸‍♂️ Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges
Knightess
Knightess of the Round Table

Want to meet Judge Sue Roy in person and learn from her in a small group setting? You’re in luck! (HINT: She’s not only a very talented lawyer and teacher, but she’s also very entertaining and down to earth in her “Jersey Girl Persona!”)

Jersey Girls
“Don’t mess with Jersey Girls! They’ll roll right over you — in or out of court.”
Creative Commons License

The Round Table 🛡️ will be well-represented by Judge Roy, Judge Lory Diana Rosenberg, and me at the upcoming Sharma-Crawford Clinic 7th Annual Immigration Court Trial Advocacy College in Kansas City, MO, April 24-26, 2024! We’ll be part of a  faculty of all-star 🌟 NDPA litigators who are there to help every attendee sharpen skills and reach their full potential as a fearless litigator in Immigration Court — and beyond!

Here’s the registration information:

🗽⚖️😎 SEE YOU AT THE SHARMA-CRAWFORD CLINIC TRIAL COLLEGE IN K.C. IN APRIL! — Guaranteed To Be Warmer Than Last Saturday’s Playoff Game!

Kansas City here we come! Hope to see you there!

Fats Domino
“Walk in the footsteps of the greats! Join us in KC in April!” Fats Domino (1928-2017)
R&B, R&R, Pianist & Singer
Circa 1980
PHOTO: Creative Commons

🇺🇸 Due Process Forever!

PWS

02-01-24

⚖️🗽👩🏽‍⚖️👨🏻‍⚖️ ROUND TABLE, GIBSON DUNN PRO BONO PROVIDE SUPREMES WITH EXPERT INPUT ON “NOTICE” ISSUE IN LATEST AMICUS BRIEF!  — Campos-Chaves v. Garland

Knightess
Knightess of the Round Table

Here’s a copy of the brief:

Notice Amicus—1737000-1737148-judges_amici briefly

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

Many thanks to all involved in this effort, particularly Richard Mark and the Pro Bono Team at Gibson Dunn. Will the DOJ go down for the third time on interrelated notice issues before the Supremes? What if the BIA followed the statute and held DHS fully accountable? What if due process, fundamental fairness, and best practices were the mission of EOIR? (Hint, they once were the “noble vision” of EOIR —  trashed by Administrations of both parties.)

🇺🇸 Due Process Forever!

PWS

10-31-23

🌊 TSUNAMI OF BAD ☠️ BIA DECISIONS HITS GARLAND’S DOJ! — WRONG On Nexus (4th, 2-1); WRONG On NTA (4th, 2-1); WRONG On Agfel (8th); WRONG On Past Political Persecution In Cameroon (5th); WRONG On Experts (1st)!

Tsunami
Tsunami of bad BIA decisions hits as Garland ignores needed housecleaning and due process reforms @ EOIR!
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

1. NEXUS

CA4 on Nexus, Religious Persecution: Chicas-Machado v. Garland

https://www.ca4.uscourts.gov/opinions/211381.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-religious-persecution-chicas-machado-v-garland

“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”

[Hats off to Daniel Thomann!  Listen to the oral argument here.]

Daniel Thomann ESQ
Daniel Thomann
ESQ

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.comhttps://www.ca4.uscourts.gov/opinions/211381.P.pdf

2. NTA

CA4 on Defective NTA: Lazo-Gavidia v. Garland

https://www.ca4.uscourts.gov/opinions/202306.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-defective-nta-lazo-gavidia-v-garland

“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”

[Hats off to Glenn Fogle!  Listen to the oral argument here.]

Glenn Fogle ESQ
Glenn Fogle ESQ

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

3. AgFel

CA8 on Shoplifting: Thok v. Garland

http://media.ca8.uscourts.gov/opndir/23/07/222508P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca8-on-shoplifting-thok-v-garland

“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”

[Hats off to Jaime Arango!  Listen to the oral argument here.]

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

4. Past Political Persecution In Cameroon

Unpub. CA5 Victory: Naah v. Garland

https://www.ca5.uscourts.gov/opinions/unpub/20/20-61059.0.pdf

“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”

[Hats off to Danielle Beach-Oswald!]

Danielle Beach-Oswald ESQ
Danielle Beach-Oswald ESQ

 

 

Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:

5. Experts

Unpublished 1st Cir. Victory [Experts]

[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!

More to follow. We continue to make a difference!

Best, Jeff

 

I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.

1st on Experts

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

Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?

In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process. 

As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.

Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.

Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!

As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.

If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!

“Catch 22” — the applicant loses either way!

Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.

The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!

Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”

Congrats, Danielle, and thanks for all you do!

Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system! 

What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?

🇺🇸 Due Process Forever!

PWS

07-14-23

⚖️🗽🌟 NDPA SUPERSTAR RAED GONZALEZ STUFFS GARLAND IN 5TH CIR., AGAIN!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca5.uscourts.gov/opinions/unpub/21/21-60195.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-defective-nta-luna-v-garland#

“Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings.”

[Hats off yet again to superlitigator Raed Gonzalez!]

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

 

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

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

When will they learn, when will they ever learn? The ultra-conservative 5th Circuit pays attention when Raed litigates in behalf of individuals seeking due process and fundamental fairness at EOIR. Why doesn’t Garland?

Congrats again, Raed!

🇺🇸 Due Process Forever!

PWS

05-28-23

🤯 THE MUNDANE RIDICULOUSNESS OF GARLAND’S BROKEN COURTS — 19-Month-Late “Notice” Of Rescheduling? — “Just Another Day @ The Office” For Those Stuck In “EOIR-land!”

 

From my Linked-In feed today:

This is what we immigration lawyers have to deal with. A court notice for a case mailed 12/27/2022 telling me that the trial scheduled for 5/18/2021 has been cancelled.

Late Notice
“Late Notice”

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

Notably the one thing this incredibly belated notice DOESN’T do: Provide an actual date and time for the “rescheduled” hearing! That will probably come only after an in absentia has been issued!

A great public research project: What are the backlog and fiscal consequences of DHS’s & EOIR’s joint intentional failure to comply with statutory notice requirements in Non-LPR cancellation cases? (a/k/a “The Pereira Debacle” — for which there has been absolutely NO official accountability).

NO MORE Attorneys General who lack actual experience representing individuals before EOIR!

Alfred E. Neumann
One of America’s largest, most important, most backlogged, and completely FUBAR Federal “Court” Systems would likely run much better if the person in charge (U.S. Attorney General) had actually been subjected to the indignities and incredible stresses of attempting to get justice for a real-life person at EOIR! Enough of the “What Me Worry” approach of Garland and other tone-deaf, “above the fray” Dem politicos!
PHOTO: Wikipedia Commons.

🇺🇸 Due Process Forever!

PWS

01-09-23

🗽⚖️HON. JEFFREY CHASE: GARLAND BIA’S “DOUBLE STANDARD” — “STRICT COMPLIANCE” FOR RESPONDENTS, “GOOD ENOUGH FOR GOVERNMENT WORK” FOR DHS & DOJ — MORE “MILLER LITE” THAN DUE PROCESS! — “Somehow, the Board chose to ignore this clear and obvious reading twice affirmed by the highest court in the land.” — Matter of LAPARRA Analyzed & Excoriated! — As Garland’s Failures @ DOJ Mount, Why Aren’t More Folks Demanding Change?

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

https://www.jeffreyschase.com/blog/2022/1/31/stuck-on-repeat

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Stuck on Repeat

The first three lessons learned from the BIA’s recent decision in Matter of Laparra1 are: (1) the Board knows only one tune; (2) that tune is the “Falls Church Two-Step,” and (3) the tune does not improve with repeated listening.

As background, Congress in 1996 passed a statute creating a document called a Notice to Appear, or “NTA” for short, which is used to commence removal proceedings before the Immigration Court.  Congress defined an NTA to require that it include the time and place of the first hearing; the document is, after all, called a “notice to appear.”

However, for many years, the Department of Homeland Security cut a corner by leaving that crucial information out of hundreds of thousands of NTAs.  The courts (which are not part of DHS, the entity issuing the NTA) would later send a different document telling the person when and where to appear.  That second document might be sent weeks, months, or even years later.

As an aside, in other areas of immigration law, EOIR has applied a literal approach to interpreting statutory terms.  An unfortunate example is found in the asylum context, where the BIA felt a strong need to add “particularity” and “social distinction” requirements for particular social group recognition, creating significant obstacles for asylum seekers.  Yet the government’s defense of those terms has been based on the argument that every word in the term “particular social group” must be accorded a very literal meaning.

However, when it comes to the term “Notice to Appear,” the Board inexplicably doesn’t seem to think meaning should matter.  According to the online version of the Cambridge English Dictionary, “notice” is defined as “(a board, piece of paper, etc. containing) information or instructions.”  A “Notice to Appear” would therefore be a piece of paper containing information or instructions about when and where to appear.  However, that is exactly the information or instructions that DHS saw fit to leave out of this particular document.  The BIA nevertheless long stood firm in its conviction that a document which provides as much  information or instruction about an upcoming hearing as a take-out menu from L&B Spumoni Gardens meets the legal definition of a “Notice to Appear.”

Not surprisingly, this government shortcut was successfully challenged by noncitizens wishing to seek a path to legal status in this country called cancellation of removal.  One can’t apply for cancellation of removal unless they’ve been present in the U.S. for ten years,2 but  once one is served with a Notice to Appear, the accrual of time towards that ten years stops.3  So whether or not what ICE was handing out met the definition of an NTA would determine whether hundreds of thousands of people would be eligible to apply for legal status.  In a case called Pereira v. Sessions,4 the Supreme Court resoundingly held that an NTA without the time and place of hearing was not an NTA, and therefore did not stop the noncitizen from accruing time to reach the 10 years of presence necessary to apply for cancellation of removal.

The BIA’s response was to issue a precedent decision, Matter of Mendoza-Hernandez,5 in which it held that in spite of the Supreme Court’s clear view to the contrary, the combination of the non-NTA and a later-sent document that is also not an NTA containing the missing information together form a valid NTA, which stops the noncitizen from continuing to accrue time towards the ten years.

The matter again reached the Supreme Court, where, at oral argument, Justice Gorsuch referred to the case as “Pereira groundhog day,” and actually asked counsel for the government why it was pursuing the case in light of the Court’s 8-1 decision in Pereira.6  In its 2021 decision in that case, Niz-Chavez v. Garland,7 the Court held that an NTA must be a single document containing all of the required information, and that the two-step method endorsed by the Board does not constitute one valid NTA, and thus will not stop the accrual of time.

Although Pereira and Niz-Chavez involved what is known as the “stop-time rule” described above, the question of proper service of an NTA also arises in other contexts.  For those who missed their initial removal hearing and were ordered removed as a result, the Supreme Court decisions seemed to offer a new opportunity.

The reason is because the statute provides for in absentia removal orders only where the noncitizen failed to appear for their hearing “after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided” to the noncitizen or their lawyer.8  Section 1229(a) is the section of the law that lists the requirements for an NTA to actually be an NTA; it was the specific section interpreted by the Supreme Court in Pereira and Niz-Chavez.  Pursuant to those decisions, no one who was issued an NTA lacking a time and place of hearing received proper notice under section 1229(a) of the Act, which specifically requires that the time and place information be provided in a single document.  Where notice was not proper, the law allows the filing of a motion to rescind an in absentia order, and further permits the motion to be filed at any time.9

The U.S. Court of Appeals for the Fifth Circuit addressed this issue of proper notice in a published decision issued in September, Rodriguez v. Garland.10  The decision cited the Supreme Court’s holding in Niz-Chavez, and determined that a single document containing all of the required information (including the time and place) is required in the in absentia context as well.  The Fifth Circuit made clear that where the NTA did not contain the time and place, it could not be cured by the mailing of a subsequent notice for in absentia purposes.

Anyone unable to guess the BIA’s response has not been paying attention.  The BIA issued Matter of Laparra in order to say that the recipient of an in absentia removal order did in fact receive proper notice pursuant to section 1229(a) even if their NTA lacked a time and place of hearing, as long as the court subsequently sent an entirely different paper days, months, or years later containing the missing information.

How did the BIA believe it could reach this same conclusion yet again in spite of the Supreme Court decisions to the contrary?  Please try to follow along as we review the Board’s explanation.

First, the Board emphasized that the statute governing in absentia orders (8 U.S.C. § 1229a(c)(5)(A)) states that such order may be entered “after written notice required under paragraph (1) or (2) of section 239(a) has been provided.”  The Board emphasized the words “written notice,” which it distinguished from “a written notice,” which the Supreme Court interpreted to indicate a single document.11  The Board’s position seems to be seriously undermined by the fact that “written notice under paragraphs (1) or (2) of section 239(a)” is subsequently referred to twice more in the same section of the law as “the written notice.”

The Board employed a novel approach here.  It dropped a footnote in which it admitted to the two subsequent mentions of “the written notice.”  But the Board then said that it reads those two subsequent uses of “the” as simply referring back to the initial “written notice” (without the definite article).12  And apparently, because they are referring to the first mention of “written notice,” the definite article “the” can just be ignored in those other two usages.  Why is that?  To explain, the Board cited a Supreme Court decision in a non-immigration case decided in 2015, Yates v. U.S.13

Yates involved a fisherman apprehended at sea with a catch containing a large number of undersized fish.  However, by the time the ship reached shore, only fish of legal size remained on board.  After a long delay, Yates was charged and convicted under 18 U.S.C. § 1519, prohibiting tampering with a “tangible object” in order to impede a federal investigation.

Fish would meet the dictionary definition of “tangible objects.”  However, in a decision authored by the late Justice Ruth Bader Ginsburg, the Supreme Court employed a canon of statutory interpretation called noscitur a sociis, under which aid in determining a term’s meaning can derive from the meaning of surrounding terms used in the same section of law.14  As the term “tangible object” in 18 U.S.C. § 1519 is preceded by “makes a false entry in any record, document…,” the Court determined that “tangible object” was meant to refer to items containing records or documents.  So tampering with an external hard drive would be covered by the statute; tampering with a fish would not.

This approach has been employed by the BIA (using the closely-related concept of ejusdem generis) in its 1985 decision in Matter of Acosta15  to determine that the term “particular social group” should be defined by an immutable characteristic, the same common denominator found in the surrounding terms of race, religion, nationality, and political opinion.  It bears noting that what the Board did in Laparra bears no similarity to the manner in which the canon was applied in either the Board’s earlier usage in Acosta or by the Supreme Court in Yates.  In Laparra, there was no comparison to the meaning of surrounding terms; instead, the Board seemed to make a random decision to ignore two usages of the definite article.  The only similarity I can see to Yates is that what the Board did seems fishy.

However, even if we do as the Board would like and look only at the first usage of “written notice” contained in section 1229(a)(1), there is still a fatal flaw in the remainder of the Board’s argument.  As noted above, the statute in that first usage requires not just any written notice, but specifically, written notice under paragraph (1) or (2) of section 1229(a), i.e., the section titled “Notice to appear.”  Paragraph (1) of that section begins: “In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”)…”  A notice to appear!  Paragraph (1) thus clearly refers to a single document, which as the Supreme Court has now told us twice, must contain the time and place of hearing.

Paragraph (2) of that same section says that “in the case of any change or postponement in the time and place of such proceedings,” then a written notice shall be provided specifying the new time and place of the proceeding, and the consequences of a failure to appear.

The meaning of paragraph (2) was by no means a matter of first impression for the Board to interpret in Laparra as it saw fit.  In its decision in Pereira, the Supreme Court said:

If anything, paragraph (2) of § 1229(a) actually bolsters the Court’s interpretation of the statute. Paragraph (2) provides that, “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.” § 1229(a)(2)(A)(i). By allowing for a “change or postponement” of the proceedings to a “new time or place,” paragraph (2) presumes that the Government has already served a “notice to appear under section 1229(a)” that specified a time and place as required by § 1229(a)(1)(G)(i). Otherwise, there would be no time or place to “change or postpon[e].”16

We know that the BIA is well aware of this; the above language from Pereira was specifically quoted in the six-judge dissenting opinion in Matter of Mendoza-Hernandez, under the heading “Plain Language.”17

Also, in its later decision in Niz-Chavez, the Court stated that “the government could have responded to Pereira by issuing notices to appear with all the information §1229(a)(1) requires—and then amending the time or place information if circumstances required it.  After all, in the very next statutory subsection, §1229(a)(2), Congress expressly contemplated that possibility.”18

Thus, the Supreme Court left no doubt in its two decisions that paragraph (2) involves a change in the time and place of hearing that was previously included in the NTA, as the statute requires.  Paragraph (2) in no way, shape, or form allows ICE to serve the noncitizen with the L&B Spumoni Gardens menu and then have the immigration court send a second paper that provides a time and place for the first time.

Somehow, the Board chose to ignore this clear and obvious reading twice affirmed by the highest court in the land.  Instead, it focused on only one word – the “or” in “paragraph (1) or (2) of section 1229(a).”19  The Board then pretended (can we find a more appropriate word than this?) not only that the “or” somehow allowed paragraph (2) to be read as if paragraph (1) didn’t exist, but also as if the words “any change or postponement in the time and place of such proceedings” could somehow be read as “change or postponement?  What a poor choice of words!  What we really meant to say was, ‘the absolutely very first time and place ever set.’  Wasn’t that obvious?  We feel so foolish.  Please just interpret this any way you see fit.”

The Board did acknowledge the Fifth Circuit’s contrary view in Rodriguez, but attributed it to that court’s failure to focus on the “paragraph (1) or (2)” language.20  Apparently, in the Board’s view, had the Fifth Circuit also focused on that word “or,” it would have reached the same twisted conclusion as the Board.  Perhaps realizing how unrealistic this might seem, the Board quickly pointed out that “[i]n any event, Rodriguez does not apply here because this case arises in the First Circuit.”21

Speaking of other circuits, it bears noting that the U.S. Court of Appeals for the Third Circuit recently stated for the second time in a published decision that the BIA’s analysis was “more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”21  I believe that the same can be said of the Board’s decision in Laparra.  It will be interesting to see if this issue reaches the Supreme Court for a third time.  If so, one should wonder why the Board might expect a different result.

Notes:

  1.  28 I&N Dec. 425 (BIA Jan. 18, 2022).
  2. 8 U.S.C. § 1229b(b)(1)(A).
  3. 8 U.S.C. § 1229b(d)(1), often referred to as the “stop-time rule.”
  4. 138 S. Ct. 2105 (2018).
  5. 27 I&N Dec. 520 (BIA 2019) (en banc).
  6. Transcript of Supreme Court Oral Argument in Niz-Chavez, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-863_k5gm.pdf, at pp. 25-26, 63-64.
  7. 141 S. Ct. 1474 (2021).
  8. 8 U.S.C. § 1229a(b)(5)(A).
  9. 8 U.S.C. § 1229a(b)(5)(C)(ii).
  10. 15 F.4th 351 (5th Cir. 2021).
  11. Matter of Laparra, supra at 431.
  12. Id. at 431-32, n.6.
  13. 574 U.S. 528 (2015).
  14. Id. at 543.
  15. 19 I&N Dec. 211, 233-34 (BIA 1985).
  16. Pereira v. Sessions, supra at 2114.
  17. Matter of Mendoza-Hernandez, supra at 538.
  18. To be clear, the government is capable of providing all required information in a single NTA.  EOIR had provided DHS access to schedule Master Calendar hearings through the agency’s Interactive Scheduling System (ISS), which was employed between those agencies until May 2014.  And in a memo issued shortly after the Supreme Court’s Pereira decision, then EOIR Director James McHenry stated that EOIR had begun providing hearing dates to DHS in detailed cases, and was working to again provide it access to ISS for scheduling non-detained cases.
  19. Matter of Laparra, supra at 430.
  20. Id. at 436: “The court reasoned that section 240(b)(5)(C)(ii) requires ‘notice’ under ‘section 239(a),’ which Niz-Chavez held must be a single document in the form of a notice to appear. However, the court based this reasoning on a recitation of section 240(b)(5)(C)(ii) that omitted the disjunctive phrase ‘paragraph (1) or (2)’ from the statute and relied solely on a reference to ‘section 239(a).’”
  21. Id.
  22. Nsimba v. Att’y Gen. of U.S., No. 20-3565, ___ F.4th ___ (3d Cir. Dec. 22, 2021) (slip. op. at 10).

Copyright 2022 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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

As Jeffrey points out, the legal and practical problems with notice at EOIR and DHS are chronic, well-documented, and consequential! Yet, given a golden opportunity to make a new start while complying with due process and establishing “best practices” Garland has miserably failed!

Instead of appointing a BIA consisting of “practical scholar expert judges” and competent, professional judicial administrators to clean up this awful mess it’s “same old, same old” under Garland’s poor leadership. Indeed, not only has Garland chosen to retain the very folks who created and aggravated the notice problems, he has actually made it worse! How many times do I have to say it: EOIR is supposed to be a “court of law,” not a highly bureaucratic, “headquarters bloated,”  “agency” modeled on and “operating” (a term I use lightly with EOIR) like the very worst aspects of the “Legacy INS.” For Pete’s sake, even DHS has done a somewhat better job of automating files than EOIR!

As recently exposed by Tal Kopan in the SF Chronicle, under Garland’s new wave of  “Aimless Docket Reshuffling,” and “mindless deterrence gimmicks” EOIR has unconscionably created entire dockets made up of probable “defective notice cases” to “gin up” illegal, bogus “in absentia” removal orders! https://immigrationcourtside.com/2022/01/20/tal-kopan-sf-chron-no-due-process-here%e2%98%b9%ef%b8%8f-garlands-despicable-star-chambers-cheered-engineered-in-absentia-deportation-orders/

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle. She exposes Garland’s mismanagement of EOIR!

At best, these bogus orders require burdensome motions to reopen, rescheduling, and “restarts” that unnecessarily build backlog. They also generate more bogus statistics and false narratives, more endemic problems at EOIR that Garland has ignored or aggravated.

At worst, improper in absentia orders generate improper arrests, detention, and illegal removals of individuals who were clueless about their actual hearing dates!

Having “supervisors and managers” supposedly in charge of operating a fair hearing system engineer and then “cheer” the absence of any hearings at all shows the depths to which EOIR has plunged under Garland’s poor leadership. But, perhaps that shouldn’t surprise us! It comes from an AG who has failed after nearly a year to re-establish a fair hearing system for asylum applicants at the border and who mounts ethically-challenged defenses of Stephen Miller’s complete eradication of asylum at the border based on a bogus, pretextual rationale rejected by almost all migration and public health experts! Why is this acceptable performance from an alleged Democratic Administration?

Judge Merrick Garland
Judge Merrick B. Garland, U.S. Attorney General
Official White House Photo
Public Realm. Appointed by a Democrat, he runs the DOJ largely with Trump holdovers, no accountability, and as if Stephen Miller were still looking over his shoulder. The result corrodes the “retail level” of justice in our Immigration Courts and threatens to de-stabilize our entire legal system!

No wonder Garland is building the already incredible 1.6 million case EOIR backlog at a ”new record” pace! 

The speculation on Biden’s Supreme Court pick is “sucking all the air out of the room.” But, Garland’s disgraceful failure to counter the Trump AGs’ “packing” of the BIA with unsuitable judges and filling EOIR “senior management” with unqualified individuals who lack the requisite expertise and consistently tilt in favor of DHS Enforcement and against Due Process, fundamental fairness, immigrants’ rights, and best practices will have more immediate corrosive effects on racial justice in America and individual human lives than any court in America outside the Supremes! 

And, unlike the Supremes, Garland “owns” all the picks for the “Supreme Court of Immigration!” Rather than standing up for progressive reforms, and giving  new progressive judicial talent a chance to shine, he has chosen to enable and empower regressive forces and to frustrate progressive experts, further undermine the rule of law, and thwart best practices!

I’m not the only observer to recognize Garland’s failure of leadership, accountability, and progressive values at DOJ. See, e.g., Biden must fix riven guardrails of democracy, https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=3686d1bd-1c2f-402e-afe8-ad86040534f8&v=sdk

Indeed, just this week, Garland’s DOJ put on another stunning display of professional incompetence by botching the plea bargain in the Ahmaud Arbery case so badly that a Federal Judge took the highly unusual step of rejecting it! https://ktar.com/story/4865811/plea-deal-in-hate-crime-case-in-the-killing-of-ahmaud-arbery/

But, even these somewhat “understated” critics of Garland don’t fully grasp the catastrophic consequences for our entire justice system and our democracy of Garland’s unwillingness and/or inability to prioritize the creation of a progressive due-process/equal-justice-oriented judiciary of experts to replace his regressive, oppressive, deadly, and beyond dysfunctional immigration judiciary at DOJ!

As Jeffrey cogently relates, “same old, same old” failed approaches by “holdover judges” doesn’t “cut it!” Sessions and Barr recognized the cosmic importance of the immigration judiciary and the imperative to “weaponize it for evil” and to use their limited time in office to maximize and  further a White Nationalist agenda developed and promoted by Stephen Miller. It’s a pity that Garland has failed to act on the legal and moral imperatives to “mine and realize EOIR’s ‘counter-potential’ for good!”  

That potential was memorialized in the long-forgotten “EOIR vision of yore:” “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all!” Remarkably, that “noble due process vision” was once displayed in bold letters on EOIR’s internal website. Now, folks like Garland are too embarrassed and spineless to even admit that such a goal ever existed.

For my equally critical if less scholarly analysis of the Laparra travesty, see https://immigrationcourtside.com/2022/01/19/garlands-bia-sidesteps-supremes-again-statutorily-defective-notice-is-good-enough-for-in-absentia-deportation-matter-of-laparra/.

Funny how right-leaning supposed “textualists” and “strict constructionists” have difficulty following clear statutory commands when the result might favor the individual while holding the Government accountable for intentionally violating the law. Also, strange how an Administration that got into office in no small measure by promoting its competence and strong commitment to humane values and equal justice for all, particularly racial justice, continues to fail on all counts! Go figure! 

🇺🇸Due Process Forever!

PWS

02-01-22

GARLAND’S BIA SIDESTEPS SUPREMES AGAIN: STATUTORILY DEFECTIVE NOTICE IS GOOD ENOUGH FOR IN ABSENTIA DEPORTATION! — Matter of LAPARRA

The Board of Immigration Appeals has issued a decision in Matter of LAPARRA, 28 I&N Dec. 425 (BIA 2022).

A respondent receives sufficient written notice to support the entry of an in absentia order of removal, even if he or she was served with a noncompliant notice to appear that did not specify the time or place of the hearing, where the respondent was properly served with a statutorily compliant notice of hearing specifying this information.Niz-Chavez v. ‍Garland, 141 S. Ct. 1474 (2021), distinguished.Matter of Pena‑Mejia, 27 ‍I&N Dec. 546 (BIA 2019), and Matter of Miranda‑Cordiero, 27 I&N Dec. 551 (BIA 2019), reaffirmed.

__________________________________________

Executive Office for Immigration Review

Office of Policy

Communications and Legislative Affairs Division

PAO.EOIR@usdoj.gov

703-305-0289

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

Perhaps, contrary to the BIA and some Circuits (both with judges who haven’t had to practice immigration law), Congress had a reason for specifying the contents of a unitary “Notice to Appear” by statute.

Let’s apply that thought in the “real world” rather than the “ivory tower universe” in which most appellate judges exist. In this case, the respondent was personally served with the defective Notice to Appear (“NTA”). Had that notice been legally sufficient under the statute, the respondent would have had critical information — the date, time and place of her upcoming hearing — in her hand. 

Nearly two years later (gives you a clue about the “disorder in the Immigration Courts”), EOIR finally got around to correcting the defect by sending her “the missing piece” of the statutorily required unified notice by regular U.S. Mail. It was to the “address provided by the respondent” almost two years earlier. (Notably, the NTA gave the respondent only three weeks advance notice, although EOIR took almost two years to notify her of this date.)

Anybody out there have problems with USPS delivery? I get my neighbors’ mail — sometimes things that look like official communications or financial information — on a fairly regular basis. And, I’ll bet the mail service in our neighborhood is better than that in many of the neighborhoods where recently arrived migrants reside.

Also, we know most of our neighbors and insure that the mail is promptly taken to the correct address — even if that means us “walking it over” and knocking on the door. Think that happens in more “transient” neighborhoods?

Think that there might, just might, also be problems with “regular mail” sent by EOIR? It’s a totally dysfunctional agency suffering from the chaos of a 1.6 million case backlog, no effective automation, no competent leadership, lack of accountability, and a demoralized, underpaid, overwhelmed, and under-appreciated clerical staff! It’s a culture where “good enough for Government work” — basically the BIA approach in this precedent — has been normalized and institutionalized.

In private practice, we used to get notices from the INS of unrelated cases represented by other attorneys stuffed in the same envelope with our firm’s notices. Think today’s EOIR operates better than yesterday’s INS? I wouldn’t “bet the farm” on that!

Also, let’s think about the “address given by the respondent.” The NTA directs the respondent to file any changes of address with EOIR. But, if DHS hasn’t “filed” the NTA with EOIR, it won’t be entered into the EOIR system. 

Moreover, even when DHS has supposedly “filed” the NTA with EOIR, that doesn’t mean that it has been manually entered into the EOIR system by the overwhelmed clerks. And, it doesn’t mean that the manual data entry is accurate!

Without prompt entry of accurate information, the later EOIR notice has a good chance of misdelivery. Also, if the respondent duly files a change of address for a case that hasn’t been correctly entered into the EOIR system, that change of address won’t get linked up with the case file. Indeed, stacks of unfiled change of address forms waiting to be filed were a staple of Arlington and other Immigration Courts.

Given that both the Trump and Biden Administrations have allowed ICE to just randomly toss hundreds of thousands of “low priority cases” or cases that could be resolved within DHS into Immigration Court, this problem has only gotten worse under Garland, as shown by the dramatic increase in the EOIR backlog during his “What Me Worry” tenure.

Alfred E. Neumann
Garland’s “strategy” of allowing Trump/Miller “plants” and holdovers continue to run the Immigration Courts into the ground hasn’t worked, as backlogs grow exponentially and his system continues to careen further out  of control!
PHOTO: Wikipedia Commons

Once upon a time, the Arlington Immigration Court was operating without a permanent Court Administrator. During that period, boxes of NTAs brought over by DHS were simply “warehoused” in the Court Administrator’s vacant office because the overwhelmed staff couldn’t keep up with data entry, given the other (often mindless) “priorities” imposed by the “Aimless Docket Reshuffllers” at Headquarters and the DOJ. There must have been hundreds of NTAs sitting there unentered into the EOIR manual system. Essentially they were “lost in space.” 

At one time, EOIR had established an “interactive scheduling system” that allotted a certain number of specific “nondetained Master slots” weekly to ICE and to the Asylum Office on each IJs docket. This insured that the respondents received real hearing dates on the NTA and reduced the burden on court staff to schedule initial Masters.

Additionally, and importantly, it gave EOIR control over their dockets. ICE couldn’t “flood” dockets beyond the Individual Judge Master Calendar time actually available in each court.

While I had been “exiled from the Tower” by the time this sensible system was abandoned, my impression is that it was the result of pressure from DHS Enforcement and DOJ politicos to create “new priorities” or conduct mass enforcement operations far in excess of EOIR’s capacity to actually schedule and fairly and professionally decide cases. Gradually, during my  tenure, the Master Calendar system got out of control and the court’s storage areas were literally filled with “stockpiled” cases awaiting scheduling notices.

Any semblance of discipline, order, and control by individual IJs over dockets quickly disappeared as dockets were “reshuffled” to meet the agendas of political officials at DHS and EOIR. On my final day on the bench, June 30, 2016, I was setting “second Masters” for a year later and setting Individual Merits hearings for Dec. 2022 and Jan. 2023. My colleague on the non-detained docket was even “further out.”

Out of six IJs then available, only two of us were assigned to the non-detained docket that comprised the vast majority of the Arlington Court’s work. Our other four colleagues were assigned full-time to “other priorities” designated by “Headquarters” and DOJ politicos, largely at the behest of DHS Enforcement.

Maybe Congress actually had better insights into the chronic administrative problems at EOIR than appellate judges at the BIA and the Circuits who attempt to “paper over” the problems and shift the consequences of the Government’s intentionally poor performance to hapless respondents — who have no control over the broken system. But, then, if you regularly hire appellate judges who have never practiced immigration law — even though it’s perhaps the largest and certainly the most controversial segment of Federal Civil litigation docket — you’re not likely to get either practical decisions or fair legal solutions.

The BIA and EOIR have already been “dinged” twice by the Supremes for trying to cover up the conscious choice by DHS and EOIR not to comply with the statutory requirements for an NTA. Both of those incorrect BIA decisions  have caused unjust results and created additional, preventable backlog havoc by requiring reopening and redoing of tens of thousands of cases decided under legally wrong BIA precedents! If Garland’s BIA “gets the trifecta” — going down for the third time before the Supremes — the disorder, backlog, and Aimless Docket Reshuffling (one of Garland’s specialties) will be exponentially increased— again!

EOIR’s and DHS’s choice to attempt to “sidestep” clear Congressional statutory requirements and Supreme Court decisions, to “cover up” the predictable consequences of lawless Government practices has dramatic “real life effects.” That’s why Garland’s choice not to replace the BIA and EOIR administrators with “pros” who have practiced before the courts, know the law, and understand the problems is so devastating to our justice system — at all levels! 

As my esteemed colleague “Sir Jeffrey” Chase of the Round Table said after receiving the LAPARA decision from Dan Kowalski over at LexisNexis: “Seriously.  I feel like I’ve heard this song before . . . .” 

Of course we have! And it’s going to continue until someone: 1) takes this mess away from DOJ; or 2) forces Garland to pay attention, remove the incompetents and Trump/Miller “plants” at EOIR, and bring in a high-level team of recognized experts in immigration, human rights, and administration empowered to stop the bleeding, get rid of the “problem children,” and begin the long overdue work of fixing this incredible mess! 

🇺🇸Due Process Forever!

PWS

01-19-22

👎🏽🤮EOIR DENIES DUE PROCESS, AGAIN! — Proper Notice Is “Of Signal Importance” For Due Process In Our Justice System — Except For Those In Immigration Court Where You Have To Litigate To The Circuit To Get Basic Rights Guaranteed To All! — This Is What “Dred Scottification” & “Systematic De-Personification” In A Totally Dysfunctional Outlaw Tribunal Looks Like! — Meet NDPA “Rising Star” Karen S. Monrreal, Esq., Who “Bested” Garland’s DOJ In Flores-Rodriguez v. Garland (9th Cir.)!

 

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports in LexisNexis Immigration Community: 

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-due-process-flores-rodriguez-v-garland

CA9 on Due Process: Flores-Rodriguez v. Garland

Flores-Rodriguez v. Garland

“The IJ’s failure to put Flores-Rodriguez on notice of this central issue in his case denied him “a full and fair hearing” by preventing him from submitting significant testimony and other evidence. Colmenar, 210 F.3d at 971. Because the IJ’s conduct potentially affected the outcome of the proceedings, Flores-Rodriguez has also suffered prejudice. Id. For these reasons, a due process violation warranting reversal has occurred. We express no opinion whether, if Flores-Rodriguez had received notice and defended against the claim that he had made false claims of citizenship, he would have likely prevailed or to the contrary been held inadmissible. But what is of signal importance in our system of justice is that when a person is charged with a crime or charged with allegations warranting removal from the country, that person is fairly entitled to notice of the claims against him and an opportunity to be heard in opposition. Because that opportunity was not given here, we grant the petition and remand to the BIA with instructions that it hold whatever future proceedings are necessary to ensure due process is given to Flores-Rodriguez before decision is made. PETITION FOR REVIEW GRANTED.”

[Hats off to Karen S. Monrreal!]

Karen S. Monrreal, Esquire
Karen S. Monrreal, Esquire
Reno, NV

******************
Many, many congrats Karen! You are quickly establishing yourself as a “fearless warrior queen” of the NDPA. 🛡⚔️ Looking forward to a time when you and others like you will take your places on the Immigration Court and other Federal Benches. That will bring some much needed, and obviously now missing, expertise, courage, humanity, practicality, and diversity to our Federal Judicial system that is stale, out of step, non-representative of our diverse nation, and floundering from top to bottom, even as the future of our democracy remains in peril.

Here’s an inspiring video about Karen and how and why she became an immigration attorney:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjisfnSorjyAhXMneAKHVkYAqMQwqsBegQIFxAB&url=https%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3D8CMfnvxMaKk&usg=AOvVaw3jOePmv5PGtnWvd2TeEB3M

Thanks for being such a great role model, Karen, for the “new generation” of the NDPA! And believe me, those of us in the “Over the Hill Brigade” of the NDPA are out there recruiting all the time!

Wow! Providing due process before making a final decision! What a radical concept! Clearly at odds with the Sessions/Barr emphasis on prejudging cases in favor of ICE enforcement and against individuals and their “dirty lawyers” out to “game” the system. That’s what the “rote form denial orders” that Sessions and Barr encouraged to generate more removals are all about! No need to know much about the law or the facts of the case. Just fill in the blanks and check “denied” and “removed!”

It’s telling, however, that even with a massive increase in judges, these “corner cutting restrictionist gimmicks” astronomically increased an already out of control backlog of cases, even while denying fair hearings to thousands! Seven months into the Biden Administration (which has the remarkable benefit of numerous “expert action plans” for reducing backlog without denying due process), that backlog continues to grow with no apparent plan for controlling it.

🔌 How many “Team Garland” Senior Officials does it take to pull this at EOIR?

Will Garland ever “pull the plug” on this parody of a “court” that keeps “blowing the basics” with human lives and futures at stake? Not very surprising when expertise is “optional” and due process takes a back seat to “cranking out removal orders” and meeting clearly unethical, due-process-denying “quotas.” Also, it’s one where a bureaucratic judicial selection process designed by the last Administration to “dumb down” and “bias out” the Immigration Courts in favor of DHS Enforcement is still in use!

One can imagine a court system where repeated significant due process violations, questionable ethics, continuing substandard legal performance, disturbing lack of subject matter expertise, grotesque inconsistencies, and statistically inexplicable patterns of anti-individual decision-making would raise some “red flags” among peers and those charged with maintaining professional standards. These days, however, it appears that only failure to meet “production quotas” or actually taking extra time to get decisions right can get an EOIR judge in hot water. 

Gotta wonder what Judge Garland would have thought if one of his Article III colleagues produced “garbage work” like this on, say, a routine Federal Tort Claims case? He probably would have been pretty upset and acted accordingly. 

But, where it’s only people’s lives and futures at stake — “the loss of everything that makes life worth living” as famously stated by the Supremes of yore — anything seems “good enough for government work” in Garland’s malfunctioning, yet deadly and inefficient, “clown courts.” 🤡 (NOTE: With a sense of false optimism, I had hoped to put the poor “EOIR Clown Emoji” — forced to work extreme overtime during the Trump Kakistocracy — out to rest. But, alas, Garland’s failure to take the lives and rights of migrants, not to mention the health, welfare, and sanity of my litigating colleagues, seriously, and his inability to connect the dots between officially-sanctioned injustice @ EOIR and injustice throughout our society, has forced him back into duty!)

I must admit that I don’t “get it” as to why Garland thinks this is acceptable performance by a public agency and fails to take the obvious steps to end to this ongoing disgrace that ruins human lives, frustrates hard-working private lawyers trying to do their jobs (actually the only folks, in addition to some in the NAIJ, keeping this sinking boat afloat right now), and undermines our entire justice system! It also diminishes his own reputation, stature, and legacy.

Many of us understand that the Biden Administration can never attain racial justice in America as long as racially charged injustice, lack of due process, and bad judging prevails in our Immigration Courts. Tragic that those in charge haven’t achieved that same level of enlightenment, understanding, and urgency! Delay in making long overdue progressive reforms and personnel changes costs lives, squanders resources, and further undermines our democracy!

🇺🇸Due Process Forever!

PWS

08-17-21

🏴‍☠️DUE PROCESS FARCE CONTINUES AT BIA: “Good Enough For Government Work” Standard For Notice of Address Only Applies To DHS — Foreign Nationals Held To Strict Compliance — Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

The Board of Immigration Appeals has issued a decision in the Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

(1) Where an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).
(2) The respondent’s failure to update his address for over 18 years indicates a lack of due diligence and may properly be found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings.

BIA PANEL: MALPHRUS and HUNSUCKER, Appellate Immigration Judges; GEMOETS, Temporary Appellate Immigration Judge.

OPINION BY: HUNSUCKER, Appellate Immigration Judge:

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

So, let’s get this a straight. The DHS has the burden of proof on notice and removability in an in absentia case. The BIA has previously said that writing some street in Tijuana, Mexico is a sufficient address for DHS to provide EOIR as part of the “Remain in Mexico” program. Matter of J.J. RODRIGUEZ, 27 I&N Dec. 762 (BIA 2020). https://immigrationcourtside.com/2020/01/31/bia-any-ol-notice-is-good-enough-for-endangered-asylum-seekers-orbited-to-mexico-beyond-matter-of-j-j-rodriguez-how-judges-at-all-levels-are-abandoning-the-rule-of-law-enab/

I call this the “good enough for Government work” approach. So, if the Government is basically allowed to get away with minimal compliance with address notice, one would expect an equally lenient approach for foreign nationals, who, after all, have far less control over the system and far fewer resources than the Government. No way!

When an individual apparently writes a “b” instead of an “h” (notice any similarity?) in a U.S. Street address, it’s “tough noogies.” That’s even where there is some evidence to suggest that the DHS actually had the correct address somewhere in their files. Normally, it would be standard practice for an Immigration Judge to check the address with DHS before entering an in abstentia order. Additionally, the BIA surmised that the some unknown individual at the incorrect address must have received and rejected the letter.

That’s not to mention the practical reality that even if the respondent had corrected his address using the proper form, there is little chance of it actually getting in the Court’s file in a timely manner. I used to marvel at the piles of unfiled address change forms I witnessed at various times during my EOIR career.

I’d also bet that it would have taken less time and effort to reopen this case and give this respondent a merits hearing than it took to deny the MTR, have it appealed to the BIA, and make it a precedent. There was a time when EOIR actually viewed its function as providing due process hearings. Now, the idea is to use as many gimmicks as possible to avoid fear hearings and produce numbers.

In other words, Billy the Bigot’s BIA will do whatever is necessary to assist their “partners” (actually “superiors”) at DHS to rack up removal orders. Because, foreign nationals are “numbers” and “stats,” not humans. And if you can do it “in absentia” — that is without any real hearing at all — so much the better.

PWS

08-05-20

3RD CIR. TO BIA ON PEREIRA: Tough Noogies, No Chevron Deference For You, Because Your En Banc Precedent Decision In Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019) Is Dead Wrong! — Guadalupe v. U.S. Att’y Gen. — Dissenting BIA Judges Get Some Vindication!

3cirStopTimeopinion

 

Guadalupe v. U.S. Att’y Gen., 3rd Cir., 02-26-20, published

PANEL: RESTREPO, ROTH and FISHER, Circuit Judges

OPINION BY: Judge ROTH

KEY QUOTE:

It is our interpretation of Pereira that it establishes a bright-line rule:

A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under section 1229(a),” and so does not trigger the stop-time rule.”14

The language is clear. Pereira holds that an NTA shall contain all the information set out in section 1229(a)(1). An NTA which omits the time and date of the hearing is defective. To file an effective NTA, the government cannot, in maybe four days or maybe four months, file a second – and possibly third – Notice with the missing information. And it makes sense to have such a bright-line rule: The ability of the noncitizen to receive and to keep track of the date and place of the hearing, along with the legal basis and cited acts to be addressed at the hearing, is infinitely easier if all that information is contained in a single document – as described in

blanks for time and place” but holding that this deficiency was not of jurisdictional significance); Perez-Sanchez v. United States Att’y Gen., 935 F.3d 1148, 1154 (11th Cir. 2019) (citing Ortiz-Santiago, 924 F.3d at 962) (“Under Pereira, . . . a notice of hearing sent later might be relevant to a harmlessness inquiry, but it does not render the original NTA non- deficient.”).

14 Pereira, 138 S. Ct. at 2113-14.

 7

Case: 19-2239

Document: 67 Page: 8 Date Filed: 02/26/2020

15

Moreover, it seems to us to be no great imposition on the government to require it to communicate all that information to the noncitizen in one document. If a notice is sent to the noncitizen with only a portion of the statutorily required information, a valid NTA can easily be sent later which contains all the required information in one document – at such time as the government has gathered all that information together. The complete NTA would then trigger the stop-time rule.

The government argues, however, that the BIA’s

decision in Matter of Mendoza-Hernandez should be given

Chevron16 deference as a reasonable reading of an ambiguous

statute. There, the BIA relied on Pereira’s position that “the

fundamental purpose of notice is to convey essential

information to the alien, such that the notice creates a

reasonable expectation of the alien’s appearance at the removal

proceeding.” 17 The BIA determined that this purpose can be

served just as well by two or more documents as it could by

18

We conclude, however, that Chevron deference is

15 We do note that in Pereira the Court left “for another day whether a putative notice to appear that omits any of the other categories of information enumerated in § 1229(a)(1) triggers the stop-time rule.” 138 S. Ct. at 2113 n. 5.

16 Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

17 Matter of Mendoza-Hernandez, 27 I. & N. Dec. at 531.

18 Id.

the statute.

one.

 8

Case: 19-2239 Document: 67 Page: 9 Date Filed: 02/26/2020

inapplicable here because we are not merely interpreting the

19

whether the Supreme Court’s decision in Pereira forecloses

stop-time rule.

our interpretation of the statute in Orozco-Velasquez.

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

What does it mean:

    • In the 3rd Circuit, undocumented individuals who have been continuously physically present in the U.S. for at least 10 years prior to receiving a “Pereira-compliant” Notice to Appear” (“NTA”) are exempt from the “stop time” rule for non-lawful-permanent resident cancellation of removal.
    • An “after the fact” Notice of Hearing from EOIR does NOT remedy the “Pereira-defect” in the NTA for purposes of the stop-time rule.
    • Those whose cancellation of removal applications were improperly denied, or who were not given a chance to apply, because of the stop-time rule should be able to reopen their cases. This should add to the “Aimless Docket Reshuffling” and jack up the backlog some more, at least within the 3rd Cir.
    • The 3rd Circuit covers Pennsylvania, New Jersey, and Delaware.
    • This mess was largely self-inflicted by DHS & EOIR. They had many chances to remedy the “Pereira problem’ over the years, but chose not to do so.
    • Meanwhile, we have a Circuit conflict. The 9th Circuit previously had rejected Mendoza-Hernandez in Lopez v. Barr, https://immigrationcourtside.com/2019/05/28/courts-as-bia-continues-to-squeeze-the-life-out-of-pereira-9th-circuit-finally-pushes-back-why-the-lost-art-of-bia-en-banc-review-dissent-is-so-essential-to-due-process/. However, that case was vacated and rehearing en banc was granted. As noted by the Third Circuit, the Sixth Circuit agreed with the BIA. So, wrong as it is, Mendoza-Hernandez will remain in effect except in the Third Circuit, unless and until other Circuits reject it.
    • I would expect the DOJ to find a petition for rehearing in this case, as they did in the Ninth Circuit. That could result in the Third Circuit’s decision being put “on hold.”
    • This split will eventually have to be resolved by the Supremes. But, that’s unlikely to happen until next year.
    • Congratulations and much appreciation to the six BIA Appellate Immigration Judges, led by former Judge John Guendelsberger, who courageously dissented from the en banc decision in Mendoza-Hernandez:
      • Judge John Guendelsberger, author
      • Judge Charles Adkins-Blanch, Vice Chair
      • Judge Patricia Cole
      • Judge Edward Grant
      • Judge Michael J. Creppy
      • Judge Molly Kendall Clark
      • Perhaps not surprisingly, Judges Guendelsberger, Cole, & Kendall Clark have since retired from the BIA.
    • Dissent remains important, if exceedingly rare at today’s BIA, where DOJ politicos and EOIR bureaucrats actively encourage “go along to get along,” pro-regime jurisprudence. Also, en banc decisions are disfavored at today’s BIA.

PWS

02-28-20

 

WHILE IMPOTENT CONGRESS & FECKLESS ARTICLE IIIs TURN THEIR COLLECTIVE BACKS: THINK THAT U.S. IMMIGRATION COURT HASN’T BECOME “CLOWN COURT” WITH POTENTIALLY DEADLY CONSEQUENCES? – Try This Out For Size: “Border Patrol Agents Are Writing ‘Facebook’ As A Street Address For Asylum-Seekers Forced To Wait In Mexico: ‘It’s wild…People are having to make things up as they go along.’”

Adolfo Flores
Adolfo Flores
Immigration Reporter
BuzzFeed News

https://www.buzzfeednews.com/article/adolfoflores/asylum-notice-border-appear-facebook-mexico

Adolfo Flores reports for BuzzFeed News:

An asylum-seeker from Honduras who presented himself at the southern border this summer seeking protection was forced to wait in Mexico until his court date in the United States. In case the government needed to contact him, a Border Patrol officer listed an address on his forms: “Facebook.”

The man, who asked to only be identified by his last name Gutierrez, told BuzzFeed News that shortly before he was sent back to Mexico along with his family, a Border Patrol agent asked him to confirm that a shortened version of his name was indeed the one he used on Facebook.

“I said ‘Yes, why?'” Gutierrez recalled. “The agent told me ‘Because that’s how we’re going to send you information about your court case.’ I thought that was strange, but what could I do?”

The form Gutierrez was given, called a Notice to Appear (NTA), is a charging document issued by the Department of Homeland Security that includes information on where an immigrant must present themselves for their first court hearing, and critically, should include an address where the applicant can be contacted if the time, date, or location of the hearing is changed.

If an immigrant fails to appear at court hearings they run the risk of being ordered deported in absentia by an immigration judge, which makes having accurate and detailed information on the forms crucial for asylum-seekers.

Gutierrez said he was never contacted about his case via Facebook and it’s unclear how DHS officials would contact an immigrant via social media.

 

A US Customs and Border Protection (CBP) spokesperson did not respond to questions about why an agent would write “Facebook” as a known address, or whether the agency was using immigrants’ social media accounts as a way to inform them of any changes or updates to their hearings.

Attorneys and advocates working with asylum-seekers at the border, including those forced to wait in Mexico under the Trump administration’s Migrant Protection Protocols (MPP) said they’ve seen other notices with “Facebook” addresses, or no address at all.

“‘Facebook’ is the most egregious example of the Department of Homeland Security doing away with the aspect of proper notice,” Leidy Perez-Davis, policy counsel at the American Immigration Lawyers Association told BuzzFeed News. “Facebook is not an adequate way to serve an NTA.”

Perez-Davis said she’s heard from other attorneys who had viewed documents from immigrants with improper or inadequate addresses such as shelters, which are often already full or only allow immigrants to remain there for a few days. Asylum-seekers are often given initial US court dates months in the future.

“This is procedurally incorrect, but DHS has been doing it anyway because there hasn’t been oversight on insufficient NTAs,” Perez-Davis said.

An immigrant in Migrant Protection Protocols (MPP), shows documents to a US border agent at Paso del Norte border bridge to attend a court hearing for asylum seekers.In June 2018, the Supreme Court ruled that an immigrant’s notice to appear was invalid because it didn’t have the date or location of his scheduled court appearance. Attorneys have pointed to the ruling to argue that NTAs with inadequate information should also be invalid.

The Trump administration policy, also known as “Remain in Mexico,” has seen more than 47,000 asylum-seekers sent back to the country, straining local resources that help immigrants in the border communities. In addition to facing violence, kidnappings, and discrimination, some immigrants live on the streets and rely on donations to feed themselves.

If an immigrant receives an improperly addressed notice to appear, they can challenge whether it was legally serviced in court, Perez-Davis said, giving an immigrant the chance to reopen their case if they do not appear at their scheduled hearing and are ordered removed in their absence.

“It goes back to the issue of due process,” Perez-Davis said. “They can’t initiate proceedings without telling someone the details of the proceedings.”

Zoe Bowman, a law student who interned with Al Otro Lado, a binational border rights project and legal service provider, said she saw at least five immigrant NTAs that had “Facebook” listed as the known address. The first of which she saw in May or June of this year.

“It’s wild,” Bowman told BuzzFeed News. “Some wouldn’t have any addresses listed at all.”

The US asylum process is not set up for cases to be fought from Mexico, making the issue uncharted territory for the US government, immigrants, and attorneys, Bowman said.

“The issues with the NTAs is just one branch of that,” Bowman said. “People are having to make things up as they go along.”

Many of the other asylum-seekers returned to Mexico along with Gutierrez left for their home countries almost immediately. Gutierrez tried to wait for his court date, but only lasted three weeks in Tijuana. Facing a months-long wait for their first court hearing without money or space in a shelter, Gutierrez said he decided to go back to Honduras with his family.

“Tijuana is dangerous, I can’t be traveling with my family to the bridge at 4 a.m.,” Gutierrez said of the early hour he was expected to appear at a border crossing for his hearing. “We were in Mexico without money or a place to stay, I couldn’t make my daughter suffer through that.”

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

Yup! This won’t go down as one the finest moments for America, the Executive, the Article III Courts, or any of the folks involved in implementing what can only be termed a program of blatantly illegal and overt human rights abuses.

 

Those of us fighting for our Constitution, human life, and the true rule of law appear to be losing the battle for the time being, given the cowardly and inept performances of those few institutions like Congress, the Supremes, and Article III Appellate Courts who could put an end to these travesties and require reform and compliance with the Constitution and the rule of law respecting treatment of refugee applicants.

 

But, we are making a legal and historical record of who stood up for human rights and who planned, executed, and enabled what can only be termed “crimes against humanity.”

This week’s coveted “Five Clown Award” goes jointly to the Supremes and Congress for their joint catastrophic failure to put an end to this illegal nonsense and reestablish Due Process and the Rule of Law.

🤡🤡🤡🤡🤡

 

PWS

 

09-27-19

HON. JEFFREY CHASE ON HOW THE BIA “BLEW OFF” THE SUPREMES — Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018)  — Is The BIA Risking Docket Disaster To Please Sessions?

https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court

The BIA vs. the Supreme Court?

Although it hasn’t caught the attention of the public or the media, the Supreme Court’s June 21 decision in Pereira v. Sessions has inspired immigration lawyers this summer, giving reason to hope and dream.  Unfortunately, the case’s importance gets lost in the details to those not proficient in the field of immigration law.  The issue that the Supreme Court agreed to decide was a narrow one: whether a Notice to Appear (i.e. the document that must be served by DHS on the Immigration Court in order to commence removal proceedings) that lacks a time and a date of the initial hearing is sufficient to invoke the “stop-time rule” that would prevent a noncitizen from accruing the 10 years of continuous presence in the U.S. needed to apply for a relief from deportation called cancellation of removal.  If you are a layperson, I’m sure I’ve already lost you.  But read on, as what preceded doesn’t really matter for purposes of our discussion; the important part is yet to come.

BIA precedent decisions that are subpar in their rationale are often upheld by circuit courts because of something called Chevrondeference.  Chevron refers to a 1984 Supreme Court case requiring courts to defer to the interpretation of statutes by federal agencies that are specifically charged with administering the statute in question.  The Board of Immigration Appeals is a part of one of the agencies (EOIR) charged with administering immigration laws; therefore, under Chevron, its decisions are owed deference by the circuit courts, even if those courts disagree with the BIA’s decision or would have reached a different outcome themselves.  But before such deference is owed, the decision must pass a two-step test.  First, the reviewing court must find that the statute the BIA is interpreting is ambiguous.  This is important, because if the statute is clear on its face, there is no basis for the agency to have to interpret that which needs no interpretation.  Only if the court determines that the statute is in fact ambiguous does it apply the second step of the test, which is whether the agency’s interpretation is reasonable.

I’m pretty certain that I’ve lost even more readers in the preceding paragraph.  I thank those of you who are still with me for your patience.  In Pereira, the statute involved is section 239(a) of the Immigration and Nationality Act, which states what information the Notice to Appear (i.e. the document needed to commence removal proceedings) must contain.  In a 2011 precedent decision, the BIA had interpreted that statute to mean that the time and date of the initial hearing were not critical elements, and that their inclusion was not required to trigger the stop-time rule.  Six federal circuits accorded Chevron deference to the BIA’s interpretation.  The lone exception was the Third Circuit.  The Supreme Court agreed to hear the case to resolve this split.  In an 8-1 decision (in which even Justice Gorsuch, Trump’s appointee, joined the majority), the Court sided with the Third Circuit.  The Court explained that no Chevrondeference was due because the statute was crystal clear, as it said in no uncertain terms that a time and a date are among the information a Notice to Appear must contain.

Finally, here is the really important part.  In its decision, the Supreme Court stated that a notice that does not contain a time and date of hearing “is not a notice to appear” under section 239(a).  The highest court in the land did not say that it is not a notice to appear only for some narrow purpose; it bears repeating that it said without such information, the document is not a Notice to Appear.

Those of you who are still reading might feel let down about now.  You’re saying “That’s it?  Where is the big payoff I was promised?  I’ll never get those three minutes of my life back that I just wasted reading jibberish about some kind of stopping rule that I still don’t understand.”  So here is where I hope I make it worthwhile.  All of us immigration lawyers read the above sentence and instantly thought the same thing: if the Supreme Court just said that a notice without a time and date is not a Notice to Appear, than almost every one of our collective clients were never properly put into removal proceedings.  The Supreme Court decision mentioned that when asked what percentage of NTAs issued in the past three years lacked a time and a date, the government responded “almost 100 percent.”  There are presently close to 750,000 cases pending before immigration courts, and there were hundreds of thousands of cases already decided by those courts over the past 15 or 20 years that also involved NTAs missing the time and date.  And the courts are now going to have to find that nearly all of those proceedings were invalid.  Old removal orders will have to be reopened and terminated.  Almost all pending cases will have to be terminated.  Although DHS will at least intend to restart all of those hearings over by now serving each individual with an NTA that does contain a time and date, how long might that take to accomplish?  And even if they are placed into proceedings again, those who were previously denied relief get a second chance.  Perhaps this time with a different judge, a better lawyer, and more equities in their favor?

So in a year in which the Attorney General has tried to remake immigration laws to his own liking, and continues to assault the independence of the only judges he directly controls;  in which children have been unapologetically separated from their parents at the border, in which victims of domestic violence have been told the rapes and violent abuses they have suffered are will get them no protection in the U.S.A., Pereira allowed us to dream of pushing a “restart” button, a “do-over.”  Attorneys began filing motions to terminate.  The response of immigration judges was mixed, with some agreeing with the argument and terminating proceedings; while others said no, Pereira was only meant to apply to the narrow technical issue of the “stop-time” rule, and not to the broader issue of jurisdiction.

Of course, the BIA needed to weigh in on this issue.  I had no doubt that the Board would rule with the latter group and find that proceedings need not be terminated.  And of course, on Friday, that’s just what they did.  The response from the legal community has been one of outrage.  First of all, it normally takes 18 months or longer for the BIA to issue a precedent decision; it can sometimes take them many years.  Here, the Board issued its decision in two months.  As one commenter pointed out, it reads like a college freshman paper written at midnight.  Considering the importance of the issue, the Board truly abandoned its legal responsibility by cranking out such a poorly written decision that fails to address (much less adequately analyze) most of the major issues raised by Pereira.

While I could go on and on with what is wrong with the BIA decision (issued on a Friday afternoon before the Labor Day weekend, the better to sneak under the radar), I’ll just focus here on one point.  The decision (written by Board Member Molly Kendall Clark), cites the applicable regulation (8 C.F.R. section 1003.14(a)), which states that “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.”  As background, another section of the regulations defines “charging document” to include a “Notice to Appear.”  The documents in question here all purport to be Notices to Appear, and do not meet the definition of any other charging document described in the regulation.  Kendall Clark writes that the regulation does not specify what information must be contained in the charging document at the time it is filed with the Immigration Court, “nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.”

Really?  Because the U.S. Supreme Court just said, very clearly, that a notice lacking a time and date of hearing is not a Notice to Appear.  How is it OK for the BIA to just ignore a crystal clear holding of the Supreme Court?

The answer is that in the mind of the BIA’s judges, the Supreme Court doesn’t have the ability to fire them, while the Attorney General does.  The other truth is that while BIA judges have been removed under Republican administrations for being too liberal, none has ever suffered any consequences under Democratic administrations for being too conservative.  Although I’m in the liberal camp, I’m not saying that the BIA is not entitled to reach a conservative conclusion.  But it can’t so blatantly disregard the law (in particular, a decision of the Supreme Court) out of self-preservation or political expediency.

The next step will be appeal of the issue to the various circuits.  In light of Pereira, there should be no Chevron deference accorded to the Board’s latest decision.  However, should another circuit split result, this issue may end up before the Supreme Court again.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

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

Here’s a copy of the BIA’s precedent decision in

Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018):

3935

Want to see a better, more logical approach that would have honored the Supremes’ reasoning in Pereira? Here’s a succinct, well-reasoned opinion from Judge Elizabeth Young of the San Francisco Immigration Court that refutes each ICE argument and shows why the BIA’s approach in Bermudez is likely to be rejected by at least some  Circuit  Courts.

IJ ORDER – SF IJ terminated under Pereira – very clear reasoning – Nameless

(Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this along.)

That no BIA Appellate Immigration Judge was willing to argue the much more logical and legally defensible approach presented in Judge Young’s decision illustrates how little real deliberation or debate remains at today’s BIA. Basically, a deliberative tribunal that no longer dares or cares to publicly deliberate in setting precedents and that decides the vast majority of non-precedent cases as “panels of one.”

As Jeffrey points out, the BIA and ICE appear to be on self-created course for a potential “Pereira II.” That, in turn, could result in hundreds of thousands of cases being subject to remand or reopening for termination. On the other hand, if ICE just reserved the NTA now, as suggested at the end of Judge Young’s opinion, the whole problem could largely be avoided. Go figure!

Yet another example of how the backlog is unlikely to diminish as long as the Immigration Courts remain in DOJ, and particularly with Jeff Sessions as the AG.

PWS

09-02-18

HERE’S MY AMICUS BRIEF IN PEREIRA V. SESSIONS IN THE U.S. SUPREME COURT – Issue: Proper Notice & The “Stop-Time Rule”

PEREIRAVSESSIIONS,SCT,AMICUS17-459 tsac Former BIA Chairman & Immigration Judge Schmidt

Many thanks to the amazing Eric F. Citron, Partner, and his team at GOLDSTEIN & RUSSELL P.C., Bethesda, MD for making this possible! More members of the New Due Process Army!

Eric is a former Supreme Court Law Clerk. No way I could have done this without him and his great colleagues! It’s  very gratifying that the “best and the brightest” in the legal community, like Eric, are coming to the aid of WESCLEY FONSECA PEREIRA and others like him. Too often in the past, part of the Government’s litigation strategy has been to create a “mismatch” between the Solicitor General’s Office and the attorneys representing migrants, who often aren’t Supreme Court “regulars.”  Brilliant, committed lawyers like Eric are “leveling the playing field.” Thanks again, Eric, for all that you and your “Terrific Team” do! And, many, many thanks to GOLDSTEIN & RUSSELL P.C. for making it possible for Eric to participate in this critically important case!

 

PWS

03-01-18

“GOOD ENOUGH FOR GOVERNMENT WORK” – 2d CIR. GIVES “CHEVRON DEFERENCE” TO BIA’S Matter of L-A-C-, 26 I. & N. Dec. 516 (B.I.A. 2015) – Migrants Have No Right to Advance Notice Of Required Corroboration! – Wei Sun v. Sessions

CA2-WeiSunvSessions

Wei Sun v. Sessions, 2d Cir., 02-23-18, published

PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.

OPINION BY: Judge Chin

KEY QUOTE/SUMMARY:

Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.

The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.

ANOTHER KEY QUOTE:

Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).

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

So, here’s what Chevron really says:

“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”

But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.” 

And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.

Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made.  Seems like a combination of fundamental fairness and common sense.

There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.

Here’s my previous post on Justice Gorsuch and Chevron:

https://wp.me/p8eeJm-eT

PWS

02-25-18

SUPREMES TAKE ON “STOP TIME” ISSUE FOR CANCELLATION OF REMOVAL – TO RESOLVE “CIRCUIT SPLIT” — COULD AFFECT MANY THOUSANDS OF REMOVAL CASES – PEREIRA V. SESSIONS!

Here’s what SCOTUS Blog has to say about the issue:

“Issue: Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”

Here’s a link to the SCOTUS Blog material on Cir:

http://www.scotusblog.com/case-files/cases/pereira-v-sessions/

Here’s a link to the First Circuit’s decision in Pereira v. Sessions, written by Judge Lipez which upheld the BIA’s ruling under so-called “Chevron deference:”

http://media.ca1.uscourts.gov/pdf.opinions/16-1033P-01A.pdf

And, here’s a “key quote” from Judge Lipez’s decision in Pereira that explains the issue a little more detail:

“The Immigration and Nationality Act (“INA”) gives the Attorney General discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. 8 U.S.C. § 1229b(b)(1). Under the “stop-time” rule, the alien’s period of continuous physical presence ends “when the alien is served a notice to appear under section 1229(a)” of the INA. Id. § 1229b(d)(1). In this case, we must decide whether a notice to appear that does not contain the date and time of the alien’s initial hearing is nonetheless effective to end the alien’s period of continuous physical presence. The Board of Immigration Appeals (“BIA”) answered this question affirmatively in Matter of Camarillo, 25 I. & N. Dec. 644 (B.I.A. 2011). The BIA applied that rule in this case.

Joining the majority of circuit courts to address this issue, we conclude that the BIA’s decision in Camarillo is entitled to Chevron deference. We deny the petition for review.”

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

So, with the 1st Circuit joining the 2nd, 4th, 6th, 7th, and 9th Circuits in upholding Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011); only the 3rd Circuit rejecting the BIA’s interpretation (Orozco- Velasquez v. Att’y Gen. United States, 817 F.3d 78, 81-82 (3d Cir. 2016)); and what is generally perceived as a “conservative leaning” Supreme Court, looks like a “slam dunk” for the Government, right? Not so fast!

On a question of statutory interpretation like this, I could definitely see some of the more conservative “strict constructionist” Justices teaming up with the “liberals” to reject the BIA’s interpretation by invoking the “plain meaning” rule of statutory construction to overcome “Chevron deference.” Indeed, quite interestingly, as I have noted in prior blogs, Justice Neil Gorsuch was an outspoken critic of Chevron while on the Tenth Circuit. Read his opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) if you have any doubts! Here’s a link to that opinion: https://www.ca10.uscourts.gov/opinions/14/14-9585.pdf

So, I wouldn’t assume at this point that Justice Gorsuch will be a “shill” or “pushover” for the Administration on all immigration issues, even if Trump thinks that’s the type of “loyalty” all his judicial appointments owe him. Actually, the oath of office that Federal Judges take requires them to uphold the Constitution of the United States, not the views and positions of President Trump, Attorney General Jeff Sessions, DHS Secretary Kristjen Nielsen, or anybody else of any importance whatsoever. That’s what real “judicial independence” (as opposed to the “captive” Immigration Judiciary) is all about!

And, you might ask what’s the “big deal” about this case? After all, even if the Supremes agree with the petitioner and the Third Circuit that the notice was defective, the BIA and DHS could easily cure the “problem” simply by specifying a “time, place, and date” for the Immigration Court hearing on the original Notice to Appear. Indeed, when I joined the Arlington Immigration Court in 2003 such a system, called “Interactive Scheduling” was in effect. But, like much else at EOIR it appears to have run into problems and been largely abandoned as the dockets mushroomed out of control. Many (not all) things about the administration of the Immigration Courts actually moved backward during my 13 year tenure in Arlington.

But, if the original Notice to Appear were held to be ineffective, then it would not serve to “Stop Time” for the 10 year period of “continuous physical presence” required to apply for the relief of “Cancellation of Removal.” This, in turn, would make thousands of individuals now in Immigration Court proceedings, perhaps tens of thousands, eligible to apply for Cancellation. And, it likely would require the reopening of thousands of already completed cases where the respondent was denied Cancellation of Removal based solely on the “Stop Time” rule. So, that’s why it’s worth the Supremes’ time to resolve this conflict among the lower Federal Courts.

PWS

01-13-18