"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Member Round Table of Former Immigration Judges
SUMMARY OF ARGUMENT
A criminal conviction vacated due to a substantive or procedural defect does not qualify as a “conviction” establishing a noncitizen’s removability under the Immigration and Nationality Act (INA). By the statute’s plain language, vacatur under section 1473.7(a)(1) conclusively establishes that the underlying conviction rested on a substantive or procedural defect: It allows people no longer in criminal custody to seek vacatur of convictions that were “legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”
Even though a California court vacated the conviction of petitioner Jose Adalberto Arias Jovel under section 1473.7(a)(1), the BIA declined to sua sponte
2 Further statutory references are to the California Penal Code unless otherwise indicated.
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reopen Mr. Arias’ removal proceedings because it held that, as a noncitizen,
Mr. Arias had the burden to show that his conviction under section 1473.7(a)(1) was vacated on the merits, and Mr. Arias failed to meet that burden. If affirmed, the BIA’s holding creates several problems.
First, the holding requires IJs to second-guess a state court’s determination under section 1473.7(a)(1), despite the statute allowing vacatur only for prejudicial defects. The plain language of section 1473.7(a)(1) requires “prejudicial error” that renders the conviction “legally invalid,” and IJs should accept that the state court must have vacated the conviction due to a substantive or procedural error of law. Precedent requires IJs to apply the INA to a section 1473.7(a)(1) vacatur without second-guessing the state court’s ruling.
Second, even if a section 1473.7(a)(1) vacatur doesn’t conclusively establish a substantive or procedural defect, the burden is not on noncitizens like Mr. Arias to demonstrate their convictions were vacated on the merits. IJs are bound by Ninth Circuit precedent, which holds that the government bears the burden of proving whether a vacated conviction can still form the basis for removal. To shift the burden of proof to noncitizens (who do not have a constitutional right to counsel, may be detained, and often have limited English proficiency) is contrary to the law and will inevitably increase the likelihood of due process violations.
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Third, the government’s interpretation of section 1473.7(a)(1) will exacerbate the growing backlog of immigration cases and the enormous pressure that IJs face to eliminate the backlog. Given the severe time and resource constraints applied to the immigration court, deviating from the established law governing vacated convictions will greatly hinder the fair and efficient administration of immigration proceedings.
Many thanks to NDPA Superstar 🌟 Judge Ilyce Shugall for taking the lead on this!
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Here’s a nice “thank you” from respondent’s counsel Tomo Takaki at Covington & Burling, LA Office:
Dear former IJs and BIA members and GMSR Counsel,
Apologies for the delayed email, but thank you all again for your excellent and powerful brief. It was truly invaluable to get the perspective of former IJs and BIA members on this important issue, especially regarding the unworkability of the BIA’s decision here. It was particularly helpful to get GMSR’s appellate expertise on board here with such well-written advocacy. Our client, and many like him, I’m sure deeply appreciate your efforts on their behalf.
Best,
Tomo Takaki
Covington & Burling LLP
And, of course many, many thanks to our all-star 🌟 pro bono counsel Stefan C. Love and Tina Kuang ofGREINES, MARTIN, STEIN & RICHLAND LLP in Los Angeles. Couldn’t do it without you guys and your excellence in appellate advocacy!
Garland’s DOJ inexplicably defends a bad BIA decision, unworkable and slanted against immigrants! Why don’t we deserve better from the Biden Administration?
Why are scarce pro bono resources being tied up on wasteful litigation when Garland could appoint a “better BIA” dedicated to due process, fundamental fairness, practical scholarship, and best practices? Why not get these cases right at the Immigration Court level? Why not free up pro bono resources to represent more respondents at Immigration Court hearings? What’s the excuse for Garland’s poor leadership and lack of vision on immigration, human rights, and racial justice?
Sure, there have been a few modest improvements at EOIR. But, it’s going to take much, much more than “tinkering around the edges” to reform a broken system that routinely treats individuals seeking justice unfairly, turns out bad law that creates larger problems for our legal system, and builds wasteful and uncontrolled backlogs.
Accountability and bold progressive reforms don’t seem to be politically “in” these days.But, they should be! Responsibility for the ongoing mess at EOIR and the corrosive effects on our justice system rests squarely on Garland and the Biden Administration.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
THE GIBSON REPORT — 07-19-21 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group
ALERTS
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
DACA: We are still waiting for more information on how USCIS will address the new decision freezing initial DACA applications (more details below), but it sounds like biometrics for pending applications have been canceled.
Telephonic & Video Hearings at Varick Immigration Court: See list of IJ preferences at the end of today’s briefing.
EOIR Portal: There is now a “View All” button that allows representatives to view a list of their cases in the EOIR portal. Also, the forms for entering appearances have been relocated to a tab at the top titled “Appearances.”
NYT: The judge, Andrew S. Hanen of the United States District Court in Houston, said President Barack Obama exceeded his authority when he created the program, Deferred Action for Childhood Arrivals, by executive order in 2012. But the judge wrote that current program recipients would not be immediately affected, and that the federal government should not “take any immigration, deportation or criminal action” against them that it “would not otherwise take.”
Reuters: Garland in a four-page opinion said Sessions’ 2018 ruling in Matter of Castro-Tum, which has been rejected by three federal appeals courts, improperly parted from decades of practice by concluding that no federal law or regulation authorized so-called “administrative closure.”
CGRS: On July 14, on stipulation of the parties, the Board of Immigration Appeals finally granted asylum to Ms. A.B., the Salvadoran woman at the center of the Trump administration’s assault on asylum for domestic violence survivors.
Appropriations Committee: The bill additionally includes further responsible and effective investments in state and local justice, including:… $50 million for legal representation of immigrant children and families
AP: On immigration alone, the party will need solid support from vulnerable swing-district Democrats and moderates, whom Republicans are certain to accuse of favoring amnesty and open borders in next year’s elections for congressional control.
Law360: President Joe Biden’s nominee to lead U.S. Immigration and Customs Enforcement told lawmakers on Thursday that he won’t end collaboration between the agency and local law enforcement officials, despite having done so as sheriff in Texas’ most populous county.
NYT: About 2,500 Afghan interpreters, drivers and others who worked with American forces will be sent to Fort Lee, Va., south of Richmond, to complete their processing for formal entry into the United States, the officials said.
WaPo: The government’s tally of individual people stopped at the border, as opposed to total apprehensions, shows 455,000 have been taken into custody so far this fiscal year, compared with nearly 490,000 at this time in 2019.
WaPo: Homeland Security Secretary Alejandro Mayorkas on Tuesday warned citizens of Cuba and Haiti against trying to flee to the United States amid unrest in those nations, saying they would be repatriated or referred to other countries for resettlement.
WaPo: The exodus has picked up pace this month, with net outflows of residents regularly exceeding 1,000 a day, according to government figures compiled by activist investor David Webb, even as the pandemic continues to disrupt travel.
Intercept: Under council rules, bills with supermajority support are guaranteed a public hearing within 60 days. No hearing is yet scheduled, but activists say they’re working to get something on the calendar.
Vice: One in five surveyed individuals reported getting electric shocks from the ICE-mandated shackles, according to a new report by Freedom for Immigrants, the Immigrant Defense Project, and the Benjamin N. Cardozo School of Law. The finding is “alarming and worrisome,” according to Layla Razavi, Deputy Executive Director of Freedom For Immigrants.
The Attorney General stated that while the rulemaking proceeds and except when a court of appeals has held otherwise, IJs and the BIA should apply the standard for administrative closure set out in Avetisyan and W-Y-U-. Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021) AILA Doc. No. 21071534
The court upheld the BIA’s denial of the petitioner’s withholding of removal claim, finding that the IJ sua sponte considered the social groups now identified by petitioner, and that the IJ’s decision to deny withholding was supported by substantial evidence. (Quintanilla v. Garland, 7/9/21) AILA Doc. No. 21071432
Lexisnexis: Valarezo-Tirado v. A.G. “We have previously granted a petition for review in which the alleged basis for the BIA’s denial of relief was that “the evidence is insufficient” and “the arguments made by the [government] on appeal . . . are persua[sive]” because we could not “perform meaningful review of [such an] order.” Here, we have even less to work with.
The court held that the BIA and IJ erred in concluding that the petitioner had failed to demonstrate that she was persecuted in Honduras on account of her membership in her proposed particular social group, namely her nuclear family. (Perez Vasquez v. Garland, 7/9/21) AILA Doc. No. 21071434
The court found that the IJ’s incredibly high denial rate for asylum applications, along with her noncompliance with Matter of R-K-K-, presented a substantial likelihood that petitioner would be entitled to relief upon full consideration by a merits panel. (Singh v. Garland, 7/12/21) AILA Doc. No. 21071435
The court held that substantial evidence supported the BIA’s conclusion that the petitioner’s experience in Ukraine did not rise to the level of persecution, and that she had failed to show that the new Ukrainian government would persecute her if she returned. (Chuchman v. Garland, 7/12/21) AILA Doc. No. 21071436
The court upheld the BIA’s affirmance of the IJ’s denial of asylum, finding that the IJ had articulated specific, cogent reasons for concluding that the petitioner’s testimony was not credible, and that those reasons were supported by substantial evidence. (Coto-Albarenga v. Garland, 7/12/21) AILA Doc. No. 21071437
Granting in part the petition for review, the court held that the IJ erred by failing to credit evidence showing that proof of the petitioner’s alienage was tainted because it was obtained from his juvenile court records in violation of California privacy laws. (B.R. v. Garland, 7/12/21) AILA Doc. No. 21071439
The court held that petitioner’s forgery conviction under section 470a of the California Penal Code categorically constituted an aggravated felony offense “relating to forgery” under INA §101(a)(43)(R), thus rendering him ineligible for voluntary departure. (Escobar Santos v. Garland, 7/9/21) AILA Doc. No. 21071438
Law360: The Ninth Circuit doubled back on a previous order that reactivated a policy requiring green card applicants to prove they had health insurance within 30 days of arriving in the U.S., vacating its earlier decision as moot Friday.
A district court found that DHS violated the APA with the creation of DACA and its continued operation, stating that the DACA memo and the DACA program that created it are hereby vacated and remanded to DHS for further consideration. (Texas v. United States, 7/16/21) AILA Doc. No. 21071636
A district court granted final approval of a settlement agreement in Saravia v. Barr, which applies to a class of unaccompanied minors, who were detained by HHS or ORR, and have a removability warrant based in whole or in part on allegations of gang affiliation. AILA Doc. No. 21071539
Law360: A U.S. citizen and a green card holder separately sued U.S. Citizenship and Immigration Services, accusing the agency of unlawfully delaying their foreign spouses’ green card applications for over 17 months.
AIC: The American Immigration Council filed a Freedom of Information Act lawsuit against DHS and its two primary immigration enforcement agencies requesting information about the obscure network of databases, information systems, and data sharing methods that are largely shielded from public view.
DHS announced an 18-month extension and re-designation of Somalia for TPS, effective from 8/18/21 through 3/17/23. A Federal Register notice explaining the procedures necessary to re-register or submit an initial registration application and apply for an EAD will be published soon. AILA Doc. No. 21071935
EOIR: Attorney General Merrick B. Garland appointed Megan R. Jackler, Justin S. Dinsdale, Alexander H. Lee, Loi L. McCleskey, Edwin E. Pieters, Artie R. Pobjecky, Jodie A. Schwab, Kenneth S. Sogabe, Lydia G. Tamez, and Romaine L. White.
Varick IJ Motion for Remote Accommodation Preferences
Judge Auh (for NYV cases): No motion required. Parties may appear via Open Voice.
Judge Burnham: No motion required. Parties may appear via Open Voice.
Judge Conroy: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Drucker: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Haq: No motion required for UAC docket. Parties may appear via WebEx. To the extent Judge Haq covers any other judge’s docket, he will follow that judge’s practice.
Judge Henderson: No motion required. Parties may appear via WebEx or Open Voice.
Judge Hoover: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Kolbe: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice or other technical means, such as WebEx, as appropriate.
Judge Ling: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via WebEx.
Judge Mulligan: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via WebEx.
Judge Mungoven: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Norkin: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Prieto: No motion required. Parties may appear via Open Voice.
Judge Reid: No motion required. Parties may appear via Open Voice.
Judge Sagerman (for NYV cases): No motion required. Parties may appear via Open Voice.
