🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

Circus — This appears to be Judge Garland’s vision of “justice” for migrants and people of color @ Bailey’s Crossroads. Isn’t it time to put the past behind us and move forward with housecleaning and reforms at EOIR? Ask Judge Garland “What are you thinking, man?” Is this YOUR vision of due process and expert “judging?” — Public Realm

https://media.ca11.uscourts.gov/opinions/pub/files/201912019.pdf

Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published

PANEL: WILSON, JILL PRYOR and LAGOA, Circuit Judges.

OPINION: JILL PRYOR, Circuit Judge

KEY QUOTE:

Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R.

§ 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.

Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore

1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e).

2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision.

2

USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 3 of 32

manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.

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

Lots of work for a bogus asylum denial by EOIR! And the utter nonsense isn’t over! Just a “remand” to give EOIR yet another chance to deny for specious reasons (as they have already done twice). This idiocy will continue until Judge Garland replaces the BIA with real judges who will properly, fairly, and timely apply the law and regulations!

The poor analysis of the IJ, mindlessly affirmed by the BIA, failed to come anywhere close to the “most egregious adverse factors” requirement of the BIA’s own precedent in Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996):

A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”

I can’t imagine how this gang of so-called “judges, got through law school and admitted to the bar! Maybe “imposters” took their exams for them! THIS is the best American justice has to offer? If not, why are they making life or death decisions and imposing potential permanent family separation on refugees?

Notwithstanding the assembly line climate and lackadaisical approach to law in Garland’s Immigration “Courts,” these are NOT TRAFFIC COURTS! They are more like “death penalty courts” or “courts of last resort” and those humans appearing before them and their representatives deserve better.

Judge Garland and his team should hypothesize that this type of inferior justice were being meted out in life or death cases to THEIR FAMILY MEMBERS AND LOVED ONES — actual human beings, NOT “just migrants” who, according to Garland’s EOIR, appear to exist in a twilight zone beneath the rest of humanity. That’s what the ongoing “Dred Scottification of the other” still being permitted and promoted by Garland at DOJ is all about!

A fitting celebration of the first Federal Juneteenth Holiday would have been to remove the entire BIA so that they can no longer inflict “Dred Scottification” on migrants of color, their families, their friends, and their communities, among others! Symbolism is only effective if followed by action. And, so far, Garland’s actions on wiping out the “vestiges of Dred Scott at Justice” have fallen woefully short!

This raises serious, unaddressed questions of why such weakly qualified individuals are on the bench in the first place when there are many immigration experts out there who can and would do better. Much better! And it wouldn’t take them years and multiple hearings, appeals, and trips to the Circuit to grant asylum.

This isn’t a “deep” case except that it represents the “deep dodo” 💩 at EOIR, the stench of which is fouling our entire justice system and shaking the foundations of our democracy! This case is about following the Code of Federal Regulations, properly applying precedent, and fairly treating asylum seekers. It’s “Law 101” — things L-1s would have to know to get to L-2! I can’t begin to think what the paper would look like like if one of my students gave me this kind of garbage on a final exam. Fortunately, to date, nobody ever has!

Nor is this a Circuit renowned for critical analysis or holding the Government to a high standards in immigration cases. Indeed, the Eleventh Circuit itself bears some responsibility for this mess! They are well aware of the anti-asylum bias and poor decision-making emanating from the Atlanta Immigration Court, within their jurisdiction, and have chosen to ignore it. See, e.g., https://immigrationcourtside.com/2019/04/22/11th-circuit-judge-adelberto-jose-jordan-outs-the-atlanta-immigration-court-for-equal-protection-charade-in-a-dissenting-opinion-in-my-view-ms-diaz-r/

Those who want a more complete run down of the ongoing “Atlanta disgrace” — a cancer on our justice system — should just go to the “Atlanta Immigration Court” tab on immigrationcourtside.com. There is more than enough compiled to have triggered an investigation, removals from office, and corrective action in a functioning Government! And my collection is just “the tip of the iceberg” on what has been written about the disgraceful, systemic denial of fairness, impartiality, and justice in Atlanta!

And, why was OIL defending this ridiculous mess in the first place? It’s a “comedy” of errors, questionable ethics, and amateurish legal work that the DOJ should be ashamed of and which Garland should end — NOW! No wonder this ridiculous national embarrassment has created an unnecessary 1.3 million case backlog that continues to grow under Garland!

Don’t let Garland or anyone else in the Administration tell you that this self-created backlog justifies a truncation of due process or more “bogus attempts to expedite” asylum cases. NO! What it requires is for Garland to bring in real judges and experts from the private/NGO sector to fix the Immigration Courts so they comply with due process and fundamental fairness!

Judge Garland, “come on man!” These deadly robed clowns and their “defenders” represent YOU — “the top legal officer in our Executive Branch!” YOU have a responsibility to the American people (NOT just the failed DOJ or the President) to “get out the big hook” and “yank” these anti-due process, anti-immigrant, anti-asylum, anti-racial-justice clowns 🤡 off YOUR bench and replace them with competence and fairness. A little (now missing) diversity wouldn’t hurt either! It’s called fulfilling the promises made by Biden and Harris during the election!

It’s not going to improve until Garland replaces the BIA with qualified judges, hires only Immigration Judges who know how to fairly adjudicate asylum cases, (with outstanding public reputations for fairness, scholarship, timeliness, teamwork, and respect), and AAG Vanita Gupta brings in better leadership at OIL to put an end to this tragic, totally unnecessary, disgracefully wasteful abuse of our Federal Judicial system and the resulting human carnage!

NDPA warriors, don’t be fooled or lured into complacency by this week’s long overdue positive developments in A-B- and L-E-A- — things that experts said should have been done by Judge Garland on “Day 1.” Keep showing your total dis-satisfaction and disgust with the glacial pace of reform at DOJ and the myriad of highly unqualified “judges” still being allowed to continue to inflict racial injustice and “worst imaginable practices” on vulnerable individuals (and their lawyers) who are entitled to due process and justice — not a continuing deadly ☠️ clown 🤡 show! Keep letting Garland, Monaco, Gupta, Clarke, Biden, Harris, Congress, the Article IIIs, and the American people know that “The EOIR Clown Show Has Got To Go!” NOW! There will be neither racial justice nor equal justice for all in America (wake up, Vanita Gupta and Kristen Clarke) while Garland operates his “star chamber courts” at EOIR!

Star Chamber Justice — Hi, Judge Garland! This is how “justice” is administered in the 11th Circuit Immigration Cours and at the Bailey’s Crossroads’ Tower. Glad you like it! I guess the screams of the innocent can’t be heard across the river! Not even sure why you would need a law school degree to be “judges” in your EOIR star chambers. It’s really just about dehumanization, degradation, and “productivity!” — Public realm

🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!

PWS

06-19-21

🤯THIS IS THE “CHANGE” PROGRESSIVES VOTED FOR? — 🏴‍☠️ GARLAND DEFENDS UNCONSTITUTIONAL IMMIGRATION DETENTION AS LOSSES CONTINUE TO MOUNT — U.S. Judge In N.D. Cal. Unimpressed With Biden Administration’s Continued Intransigence!

Judah Lakin — Judah Larkin
Partner, Lakin & Wille
Oakland, CA
PHOTO: Larkin & Wille

Subject: [fedcourtlitigation] Habeas Win on Post-Preap Constitutional Challenge to 236(c)

Dear All:

We wanted to share an exciting decision we received on Friday from Judge Freeman in the Northern District of California on Friday granting our client a bond hearing.

We, together with our co-counsel Jenny Zhao and Monica Ramsy from Asian Americans Advancing Justice—Asian Law Caucus, and Scott Mossman, brought a habeas challenging mandatory detention under 1226(c) for an individual who was arrested by ICE in the community, 6 years after he finished his criminal sentence. Our client is an LPR with an aggravated felony conviction (drug trafficking). We asked for the local ICE office to follow the Johnson memo and release him, but they refused. We elevated it to headquarters and they likewise refused.

As a result, we brought an as-applied constitutional challenge to his detention without a bond hearing—a claim which was expressly left open by the Supreme Court in Preap. He had been detained for about 6 weeks at the time we filed the habeas, so it is a non-prolonged detention case.

Judge Freeman applied the Mathews framework and granted our TRO motion, concluding that the Constitution requires a bond hearing in this case. The bond hearing is scheduled for this week, pursuant to the TRO order, so we are optimistic he will be free soon. We’re also hopeful that this case can be used by others as we continue to work to dismantle mandatory detention.

The TRO decision is attached and is available at: Perera v. Jennings, No. 21-CV-04136-BLF, 2021 WL 2400981 (N.D. Cal. June 11, 2021).

Judah Lakin (he/him/his/Él)

Attorney at Law | Lakin & Wille LLP

Here’s a copy of Judge Freeman’s decision, basically a “primer” on Matthews v. Eldridge due process and its blatant violation under immigration bureaucracies of Administrations of both parties.

Judge Freeman’s Order

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

Seems like “Con Law 101” to me! So, how come it’s “above Garland’s pay grade?”

Many congrats to Judah and all others involved to this effort!

🇺🇸⚖️🗽Due Process Forever!

PWS

06-16-21

THE GIBSON REPORT — 06-14-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Circuit Judge Robert Katzmann, Tireless Supporter Of Representation For Migrants, Dies At 68; OPLA Will Join Some Niz-Perez Motions; Supremes Nix Reckless Intent As Sufficient For Crime of Violence; Biden Administration Continues To Ignore Plight Of Refugee Women,☠️⚰️🤮 & Many Other Important Items This Week!

ALERTS

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Status Overview & EOIR Court Status Map/List

EOIR plans to resume non-detained hearings on July 6, 2021 at all remaining immigration courts. Attorneys have reported seeing non-detained cases advanced or continued with less than 30 days’ notice before the individual hearing, so check your EOIR portal.

Prosecutorial Discretion and the ICE Office of the Principal Legal Advisor (OPLA)

New York City ICE-OPLA-NYC-PD@ice.dhs.gov

Varick ICE-OPLA-NYC-VRK-PD@ice.dhs.gov

And in case you need a refresher on PD: NIP/NLG: What is the new Prosecutorial Discretion (“PD”) memo?

Vermont Service Center Address Change: Effective June 14, 2021.

OPLA NY Varick Address Change (not reflected on OPLA website yet)

Office of the Principal Legal Advisor

U.S. DHS/ICE

201 Varick Street, Suite 738

New York, NY 10014

Phone: 212-367-6334

Duty Attorney: OPLA-NY-VARICK-DutyAttorney@ice.dhs.gov

Reception window: weekdays 8:30am – 12:00pm. In-person, hard-copy service of documents will only be accepted at the window for detained cases pending at the Varick Street Immigration Court.

eService: For detained and non-detained cases pending before the Varick Street Immigration Court, you must use the “Varick Street NYC” location.   For cases pending before the Immigration Courts at 26 Federal Plaza and 290 Broadway, you must use the “New York City” location. Beginning July 6, 2021, documents submitted with the wrong location designation will be rejected.

TOP NEWS

Judge Robert A. Katzmann (1954-2021)
Second Circuit Court of Appeals
PHOTO: US Courts.com

Robert Katzmann, U.S. Judge With Reach Beyond the Bench, Dies at 68

NYT: “Almost single-handedly he convinced the organized bar to provide free quality representation for thousands of needy immigrants,” said Jed S. Rakoff, a senior U.S. District Court Judge. “No judge ever took a broader view of the role of a judge in promoting justice in our society, or was more successful in turning those views into practical accomplishment.”

New York gave every detained immigrant a lawyer. It could serve as a national model.

Vox: While details of the plan are short, [Biden] has asked the Justice Department to restart its access to justice work, which was on hiatus during the Trump administration, and convened a roundtable of civil legal aid organizations to advise him. But the Biden administration need not look far for potential solutions: The New York Immigrant Family Unity Project, a first-of-its-kind program that provides publicly funded lawyers to every detained or incarcerated immigrant in the state, offers a helpful model.

Biden Regulatory Playbook Revives More Active Government

Bloomberg: The Justice Department and Department of Homeland Security plan to propose new criteria for asylum-seekers as part of Biden’s broader goal to retool the nation’s immigration system. The Department of Homeland Security will draft ways to strengthen protections for undocumented individuals brought to the U.S. illegally as children, under the program known as Deferred Action for Childhood Arrivals (DACA). See also Aaron Reichlin-Melnick’s Twitter thread summarizing the agenda.

U.S. to expand work permits for immigrants who are crime victims

Reuters: A new U.S. immigration policy announced on Monday will expand access to work permits and deportation relief to some immigrants who are crime victims while their visa cases are pending.

Central American women are fleeing domestic violence amid a pandemic. Few find refuge in U.S.

WaPo: Though President Biden quickly signed several executive orders to roll back some of President Donald Trump’s most draconian policies — including one that sent asylum seekers back to Mexico to await their court hearings — a number of other restrictive measures and rulings that directly affect domestic violence survivors remain in place.

Immigration judges decide who gets into the U.S. They say they’re overworked and under political pressure.

NBC: Among the judges’ concerns, as described to NBC News: There aren’t enough of them, they need more support staff, and they’ve felt political pressure from their bosses at the Justice Department.

US closes Trump-era office for victims of immigrant crime

AP: VOICE will be replaced by The Victims Engagement and Services Line, which will combine longstanding existing services, such as methods for people to report abuse and mistreatment in immigration detention centers and a notification system for lawyers and others with a vested interest in immigration cases.

U.S. reunites only seven immigrant children with parents since Feb

Reuters: An effort by U.S. President Joe Biden to reunite migrant families separated by the previous administration is moving slowly, with only seven children reunited with parents by a task force launched in February, according to a U.S. Department of Homeland Security (DHS) report released on Tuesday. Another 29 families are set to be reunited in the coming weeks, the report said.

New data shows that fewer migrant children arrived alone at the southern border last month.

NYT: There was a slight increase in the number of border crossings, encounters and apprehensions overall during the same time period, a sign that the record surge of migrants trying to get into the country this spring could be starting to stabilize.

Panic attacks highlight stress at shelters for migrant kids

WaPo: As of May 31, nearly 9,000 children were kept at unlicensed sites, compared with 7,200 at licensed shelters, court filings by the U.S. government said. While the unlicensed facilities were running at near capacity in May, the licensed facilities were only about half full, according to a report filed by the agency tasked with the children’s care.

Fewer migrant families being expelled at border under Title 42, but critics still push for its end

WaPo: U.S. Customs and Border Protection apprehension numbers for May released recently show the share of families — about 20 percent — being expelled under Title 42 continued to decline. Although the overall number of families reaching the Southwest border declined as well, the data shows that eight out of 10 families that Border Patrol encountered were released into the country and allowed to pursue immigration cases.

Harris defends telling migrants ‘do not come,’ not visiting US-Mexico border

ABC: Her trip to meet with Guatemalan and Mexican leaders is part of a two-track approach to the issue, senior administration officials have said, of “stemming the flow” of migration in the near term and establishing a “strategic partnership” with Mexico and Northern Triangle countries “to enhance prosperity, combat corruption and strengthen the rule of law” in the longer term.

LITIGATION/CASELAW/RULES/MEMOS

SCOTUS Holds Recklessness Insufficient for Crime of Violence

ImmProf: It’s one of those wonky SCOTUS plurality opinions. Justice Kagan announces the judgement of the court and gets three justices (Sotomayor, Kennedy, and Gorsuch) to sign onto her opinion, which focuses on the statutory phrase “against the person of another.” Justice Thomas concurs, agreeing in the judgment that Borden’s conviction doesn’t qualify as a violent felony, though he focuses on different statutory language: “use of physical force.”

El Salvador Crime Not Basis For Relief, 5th Circ. Says

Law360: The Fifth Circuit declined to review a Salvadoran man’s appeal for humanitarian deportation relief Wednesday, finding that immigration judges had rightfully denied his claims after he failed to show he was a member of a persecuted group.

CA5 Denaturalizes Former Salvadoran Military Officer: USA V. Vasquez

LexisNexis: Arnoldo Antonio Vasquez, a former Salvadorian military officer, was a naturalized American citizen. Based on his role in extrajudicial killings and a subsequent cover-up occurring during armed conflict in El Salvador, the government sought to revoke his citizenship, that is, to denaturalize him.

CA8 Upholds Denial of Asylum to Honduran Petitioner After Finding Her PSG of Family Membership Was Not a Central Reason for Threats

The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21) AILA Doc. No. 21060736

CA8 Upholds BIA’s Conclusion That There Was “Reason to Believe” Petitioner Was Involved in Illicit Drug Trafficking

Applying the “reason to believe” standard under INA §212(a)(2)(C), the court held that substantial evidence supported the BIA’s conclusion that there was probable cause to believe that petitioner was involved in illicit drug trafficking and was thus inadmissible. (Rojas v. Garland, 5/27/21) AILA Doc. No. 21060735

CA9 Says Government May Parole Returning LPR into U.S. Without Proving He or She Meets an INA §101(a)(13)(C) Exception

The court held that the government is not required to prove that a returning lawful permanent resident (LPR) meets an exception under INA §101(a)(13)(C) before it can parole the returning LPR into the United States for prosecution under INA §212(d)(5). (Vazquez Romero v. Garland, 5/28/21) AILA Doc. No. 21060737

CA11 Finds Salvadoran Petitioner Whose Family Was Targeted by Gang Failed to Satisfy Nexus Requirement for Asylum

Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21) AILA Doc. No. 21060738

BIA Issues Ruling on Changed Circumstances Exception to the One-Year Filing Bar for Asylum Applications

The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021) AILA Doc. No. 21060899

Feds Tell 1st Circ. Not To Wipe ICE Courthouse Arrest Ruling

Law360: The First Circuit should stand by its decision to wipe a lower court ruling that blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, despite the Biden administration’s order curbing many such arrests, the federal government argued Thursday.

DHS Hit With Suit Over Spousal Visa Processing Delay

Law360: A lawful permanent resident of the U.S. sued the Department of Homeland Security in Maryland federal court Wednesday, claiming an unreasonable delay in processing his wife’s spousal visa application, which he says has not been acted on since it was filed in January 2020.

USCIS Issues Three Policy Updates to “Improve Immigration Services”

USCIS issued three policy updates in the Policy Manual to clarify the expedited processing, improve RFE and NOID guidance, and increase the validity period for initial and renewal EADs for certain pending adjustment of status applications. AILA Doc. No. 21060934

USCIS Issues Updated Policy Guidance on Criteria for Expedite Requests

USCIS updated policy guidance in its Policy Manual regarding the criteria used to determine whether a case warrants expedited treatment. AILA Doc. No. 21060936

USCIS Issues Policy Update to Better Protect Victims of Crime (U Visa Petitioners)

USCIS: USCIS is updating the USCIS Policy Manual to implement a new process, referred to as Bona Fide Determination, which will give victims of crime in the United States access to employment authorization sooner, providing them with stability and better equipping them to cooperate with and assist law enforcement investigations and prosecutions.

USCIS Launches ‘History’ Tab for Policy Manual

USCIS: USCIS has made historical versions of the USCIS Policy Manual available to the public. These historical versions will reflect the pertinent policy in effect on a particular date and are being provided for research and reference purposes only. Users can find the historical versions under the “History” tab within the Policy Manual chapters. However, this tab will only reflect historical changes moving forward. For historical versions before June 11, you can visit the Internet Archive.

ICE Provides Interim Litigation Position Regarding Motions to Reopen in Light of Niz-Chavez v. Garland

ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals. AILA Doc. No. 21061030

ICE Provides Guidance on Submitting Prosecutorial Discretion Requests to OPLA

ICE provided guidance on submitting a prosecutorial discretion request to OPLA including a listing of relevant email addresses that can be used when submitting a request to OPLA field locations. AILA Doc. No. 21061430

EOIR Issues Guidance After DHS Issued Updated Enforcement Priorities and Initiatives

EOIR issued a memo that provides EOIR policies regarding the effect of DHS’s updated enforcement priorities and initiatives. Memo is effective as of 6/11/21. AILA Doc. No. 21061133

EOIR Cancellation Of Policy Memorandum 21-10 And Information On EOIR Fees And Fee Waivers

EOIR: As part of EOIR’s ongoing efforts to improve operations and review existing policy memoranda, the following Policy Memorandum (PM) is rescinded: 1.PM 21-10, Fees.

RESOURCES

·         AILA: Client Flyer: How a Bill Becomes a Law

·         AILA: Client Flyer: The Nonimmigrant Visa Waiver Process

·         AILA: Sample Motion to Stay or Recall the Mandate at Court of Appeals

·         Amnesty: USA and Mexico deporting thousands of unaccompanied migrant children into harm’s way

·         ASISTA: Updated Practice Alert Regarding Certain U and T After-Acquired Cases

·         CLINIC: TPS Burma – Initial Application Checklist

·         CRS: Formal Removal Proceedings: An Introduction

·         ILRC: Applying for Adjustment of Status Through VAWA

·         NIP/NLG: What is the new Prosecutorial Discretion (“PD”) memo?

·         NIP/NLG: Settling FTCA Litigation for Immigration Relief

EVENTS

June: National Immigrant Heritage Month

FJC Core and Advanced Trainings, June and July 2021

6/15/21 U Visa Hot Topics

6/15/21 Motions to Reopen in Immigration Court: Part III – VAWA Self-petitioners

6/15/21 Statelessness & COVID-19: Case Studies Around the World

6/16/21 Immigrant eligibility for public benefits

6/16/21 Phase 2 of a SIJS case: Preparation & submission of the immigration forms to USCIS

6/17/21 Practice tips for representing clients with criminal legal system contacts in affirmative applications

6/17/21 Migration, Climate Justice, and the Defense of Mother Earth

6/18/21 The Journalists and Writers Foundation Virtual Discussion on “US Immigration Agenda under the Biden Administration”

6/22/21 EADs and Delays in Work Authorization for Your Family– and Employment-Based Clients

6/22/21 Defending Immigration Removal Proceedings 2021

6/25/21 Understanding and Screening for Statelessness

6/29/21 Immigrant eligibility for public benefits

6/30/21 “Objection!” How to Object Effectively in Immigration Court

6/30/21 Immigration Update – June 2021

7/7/21-7/21/21 Webinar Series: Navigating Refugee and Asylee Issues

7/8/21-7/29/21 Webinar Series: Overview of Removal Proceedings and Orders of Removal

7/9/21 FOIA Requests with DHS

7/15/21 Build Bridges, Not Walls: A Journey to a World Without Borders

7/21/21 The ethics of dual representation (child and guardian) in SIJS practice

7/21/21 Ethical Considerations for Immigration Law

7/22/21 PLI: Defending Immigration Removal Proceedings 2021

7/26/21 Understanding Parole

9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, June 14, 2021

·         Immigration influences on “In the Heights,” by AK Sandoval-Strausz

·         At the Movies: In the Heights (2021)

·         With a backlog of over 1.3 million cases, the 500 immigration judges in the US feel overburdened and pressured to deport

·         Immigration Article of the Day: The DACA decision: Department of Homeland Security v. Regents of the University of California and its implications by Brian Wolfman

Sunday, June 13, 2021

·         FAIR’s take on “Amnesty” — a classroom tool?

·         Rethinking the US Legal Immigration System

·         Immigrant Article of the Day: Missing Immigrants in the Rhetoric of Sanctuary by Ava (formerly Andrew) Ayers

Saturday, June 12, 2021

·         Your Playlist: Diana Jones

·         Immigration Law and FOIA webinar

·         Immigration Article of the Day: Labor Citizenship for the Twenty-First Century by Michael Sullivan

Friday, June 11, 2021

·         From The Bookshelves: The Book of Rosy by Rosayra Pablo Cruz & Julie Schwietert Collazo

·         Immigration Article of the Day: The Case for Chevron Deference to Immigration Adjudications by Patrick J. Glen

·         House Democrats push Garland for immigration court reforms

Thursday, June 10, 2021

·         RIP Judge Robert A. Katzmann (2d Circuit)

·         Book Review of Adam Cox and Cristina Rodriguez’s book, The President and Immigration (2020)

·         Breaking News: SCOTUS Holds Recklessness Insufficient for Crime of Violence

·         Guest Post Jude Joffe-Block on Driving While Brown

·         President Biden wants to expand immigrants’ access to legal representation

Wednesday, June 9, 2021

·         Center for Migration Studies Webinar on new report: making citizenship an organizing principle of US immigration

Tuesday, June 8, 2021

·         Netflix’s Army of the Dead: “U.S. Constitutional Law — Not In Effect”

·         VP Harris Speaks on Migration in Mexico City

·         Progess Report Released on Reuniting Migrant Familes

·         VP Harris to Guatemalan Asylum Seekers: “Do Not Come”

Monday, June 7, 2021

·         Children Thrive Action Network: I ❤️ My Immigrant Family, a video celebration

·         Prosecutorial Discretion in the Biden Administration

·         Virtual Book Event (June 14): Driving While Brown: Sheriff Joe Arpaio versus the Latino Resistance

·         Job Announcement: Fellow @ UCLA Center for Immigration Law and Policy

·         Job Announcement: Cornell Legal Fellow, Farmworker Legal Assistance Clinic

·         Supreme Court Rules Against TPS Recipient in Adjustment Case

·         Student Is Denied High School Diploma for Wearing Mexican Flag

·         VP Harris to Visit Guatemala, Mexico to Discuss Migration, Human Trafficking, Corruption

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

Thanks, Elizabeth!

I note that Judge Robert A. Katzmann spoke at several of our Immigration Judge Conferences and also attended a Georgetown Law Judicial seminar on inconsistency in asylum adjudication that I participated in as an Immigration Judge. He was instrumental in creating both the Immigrant Justice Corps and the NYC representation program for migrants.

Notably, Liz Gibson, of “The Gibson Report,” one of my former Georgetown Law students was also selected by Judge Katzmann and other experts for the super-competitive Immigrant Justice Corps! And we can see what a difference Liz is making every day!

Those of us committed to due process and fundamental fairness mourn Judge Katzmann’s passing. His enlightened, humane, and compassionate leadership will be missed.

Lots of important information for practitioners here. It illustrates that while ICE and USCIS are moving forward with some modest, long overdue due process and “best practices” reforms, EOIR under Garland continues to lag behind.

This week’s disclosures about the deep problems at the Trump DOJ, which have not been effectively addressed, show that under Garland the DOJ isn’t inclined to fix even the most obvious defects at Justice until they are exposed by outside groups and the public pressure grows. At a time when the DOJ needs bold, proactive progressive leadership, Garland’s “reactive” style of management and lack of aggressive progressive leadership continues to erode confidence in our justice system.

As illustrated by last week’s NBC Nightly News report on dysfunction, polarization, and lack of due process and fundamental fairness at EOIR, the ongoing disaster in our Immigration Courts actually dwarfs all of the other problems at the DOJ. And, it certainly adversely affects more human lives and American communities.

Due process, human rights, and racial justice advocates and experts should not trust Garland and his team to fix EOIR before it’s too late. In the first place, he currently has nobody on his “team” with the Immigration Court experience and the progressive expertise to get the job done!

So it’s going to take more aggressive litigation, more demands to Congress for Article I, more op-eds, more front page articles and news reports, more calls and letters to the White House, and more “creative disruption” to force Garland’s hand on EOIR reform.

Additionally, rather remarkably, and contravening the Biden Administration’s pledge of honoring diversity, the DOJ has done nothing on its own to recruit or attract a diverse group of expert progressive judges. Indeed, Garland actively undermined the effort with an outrageous “17-judge giveaway” to the disgraced Billy Barr. This week’s revelations showed just how ridiculous was Garland’s inappropriate “deference” to Barr-selected, non-progressive, non-diverse judges!

Therefore, it’s absolutely critical that the rest of us keep beating the drum and encouraging the “best and brightest” progressive immigration experts to apply for judicial and executive positions at EOIR. In particular, the immigration judiciary lacks representation by talented Latina and Latino judges with experience representing asylum applicants and other migrants.

They are out there, for sure! But EOIR’s aggressively anti-Hispanic, often misogynist culture, the anti-Hispanic “jurisprudence” churned out by Sessions, Barr, and the BIA, and the demeaning and “dumbing down” of the Immigration Judge jobs to be nothing more than glorified “deportation clerks” has effectively discouraged the folks we need on the bench from applying. And, posting for short periods on “USA JOBS” is not a serious effort at recruiting from the outside or creating a more representative pool of applicants.

NAIJ is doing some of the “diversity outreach” that that should be DOJ’s job. But, they need help! Another reason why Garland’s failure to restore NAIJ as the representative of Immigration Judges is highly problematic! These things should be “no brainless” under a Dem Administration. Instead, at Garland’s DOJ, it’s like pulling teeth!

A number of minority attorneys have told me that they felt unwelcome at the “Trump EOIR” or thought that they couldn’t function independently and effectively in a culture that obviously demeaned and dehumanized people of color.

We can’t force positive, progressive change in the toxic culture at EOIR without getting “agents of change” and judicial role models from currently underrepresented communities on the inside, where they belong. Also, those who actually have represented individuals in Immigration Court have both organizational skills beyond those of many government bureaucrats and practical problem solving ability that simply isn’t promoted or recognized within the inefficient “top-down” EOIR bureaucracy.

So, members of the NDPA, get those EOIR applications in there! Garland is tone deaf to the necessity and the opportunity for a progressive judiciary at EOIR that he squanders every day with his lackadaisical non-leadership. So, as is often the case with Dem Administrations, you’re going to have to take the initiative, break down the the doors of bias and incompetence at EOIR, and create the progressive judiciary of the future with or without Garland’s support!

EOIR is going to have trouble continuing to keep the “best and brightest” progressives out of the Immigration Judiciary. Don’t wait for change to come to you — not going to happen under Garland! Be an agent of aggressive, progressive change! Take the due process/racial justice revolution to the halls of justice @ Justice!

🇺🇸Due Process Forever!

PWS

06-16-21

⚖️🗽👍🏼HON JOHN MILO BRYANT OF ARLINGTON IMMIGRATION COURT STANDS TALL FOR DUE PROCESS!😎 — Grants Motion To Terminate Based On Niz-Chavez!

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/niz-chavez-prompts-ij-to-terminate-proceedings-defective-nta

Niz-Chavez Prompts IJ to Terminate Proceedings: Defective NTA

Attorney Ted Murphy has some good news. He filed this motion, and the IJ terminated proceedings!

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

Congrats to Ted, and thanks for passing this along! (I never tire of having an excuse for using this picture from the “Courtside Archives!”)

Arlington Judges

”Well, he never was one to “‘go along to get along!’” Hon. Thomas “Frosty the Snowman” Snow, flanked by Hon. John Milo “JB” Bryant (in the funny looking dark, non-conforming suit) and by Judge Rodger B. “Marine” Harris and me departing for my last “Thursday Judges’ Lunch” on the day of my retirement, June 30, 2016.

🇺🇸🗽⚖️😎Due Process Forever!

PWS

06-10-21

😢BIG TPS DEFEAT: UNANIMOUS SUPREMES AGREE WITH BIDEN ADMINISTRATION, DENY TPS HOLDERS ELIGIBLE FOR PERMANENT IMMIGRATION OPPORTUNITY TO ADJUST STATUS — That’s Exactly The Result Congress Wanted, Says Justice Kagan, Writing For Court! — Sanchez v., Mayorkas

https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf

SYLLABUS BY COURT STAFF:

Syllabus

SANCHEZ ET UX. v. MAYORKAS, SECRETARY OF HOMELAND SECURITY, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 20–315. Argued April 19, 2021—Decided June 7, 2021

Petitioner Jose Santos Sanchez is a citizen of El Salvador who challenges the denial of his application to become a lawful permanent resident (LPR) of the United States. Sanchez entered the United States unlaw- fully in 1997. In 2001, the Government granted him Temporary Pro- tected Status (TPS). The TPS program allows foreign nationals of a country designated by the Government as having unusually bad or dangerous conditions to live and work in the United States while the conditions last. See §1254a. In 2014, Sanchez applied under §1255 of the immigration laws to obtain LPR status. Section 1255 provides a way for a “nonimmigrant”—a foreign national lawfully present in this country on a temporary basis—to obtain an “[a]djustment of status” to LPR. 8 U. S. C. §1255. The United States Citizenship and Immigra- tion Services determined Sanchez ineligible for LPR status because he entered the United States unlawfully. Sanchez successfully chal- lenged that decision before the District Court, which reasoned that Sanchez’s TPS required treating him as if he had been lawfully admit- ted to the country for purposes of his LPR application. The Third Cir- cuit reversed, finding Sanchez’s unlawful entry into the country pre- cluded his eligibility for LPR status under §1255, notwithstanding his TPS.

Held: A TPS recipient who entered the United States unlawfully is not eligible under §1255 for LPR status merely by dint of his TPS. Section 1255 provides that eligibility for LPR status generally requires an “ad- mission” into the country— defined to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” §1101(a)(13)(A). Sanchez did not enter lawfully.

2

SANCHEZ v. MAYORKAS Syllabus

And his TPS does not eliminate the effect of that unlawful entry. Sec- tion 1254a(f)(4) provides that a TPS recipient who applies for perma- nent residency will be treated as having nonimmigrant status—the status traditionally and generally needed to invoke the LPR process under §1255. But that provision does not aid the TPS recipient in meeting §1255’s separate admission requirement. Lawful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter. Sanchez resists this conclu- sion, arguing that the statute’s directive that a TPS recipient “shall be considered . . . as a nonimmigrant” for purposes of §1255 means he must also be considered as admitted. But the immigration laws no- where state that admission is a prerequisite of nonimmigrant status. So there is no reason to interpret the TPS provision’s conferral of nonimmigrant status as including a conferral of admission. In fact, contrary to Sanchez’s position, there are immigration categories in which individuals have nonimmigrant status without admission. See, e.g., §§1101(a)(10), 1101(a)(15)(U), 1182(d)(14). Thus, when Congress confers nonimmigrant status for purposes of §1255, but says nothing about admission, the Court has no basis for ruling an unlawful entrant eligible to become an LPR. Pp. 4–9.

967 F. 3d 242, affirmed.

KAGAN, J., delivered the opinion for a unanimous Court.

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

So TPSers who are long time residents and meet the requirements for a green card will continue to twist in the wind. I wouldn’t hold my breath for Congress to help them out. Many of us believed there were better interpretations available that would have produced a more sensible and humane result. But, we were wrong!

I guess the opportunity to rule against migrants is uniting an otherwise often divided Court!

PWS

06-07-21

⚖️SUPREMES UNANIMOUSLY SAY THAT “PRESUMPTION OF CREDIBILITY” DOESN’T APPLY ON JUDICIAL REVIEW IN OPINION BY JUSTICE GORSUCH — Garland v. Ming Dai

https://www.supremecourt.gov/opinions/20pdf/19-1155_1a7d.pdf

Syllabus by Court staff:

GARLAND, ATTORNEY GENERAL v. MING DAI CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 19–1155. Argued February 23, 2021—Decided June 1, 2021*

In each of these cases, a foreign national appeared before an immigration judge (IJ) and requested that he not be returned to his country of origin. For Cesar Alcaraz-Enriquez, the IJ first had to determine whether Mr. Alcaraz-Enriquez had committed a disqualifying “partic- ularly serious crime” based on his prior California conviction for “in- flicting corporal injury on a spouse or cohabitant.” See 8 U. S. C. §1231(b)(3)(B)(ii). The IJ considered both the probation report issued at the time of the conviction (which detailed a serious domestic vio- lence incident) and Mr. Alcaraz-Enriquez’s own testimony at the re- moval proceeding (which included an admission that he hit his girl- friend but allegedly did so in defense of his daughter). Relying in part on the version of events in the probation report, the IJ held Mr. Al- caraz-Enriquez ineligible for relief. On appeal, the Bureau of Immi- gration Appeals (BIA) affirmed. In Ming Dai’s case, he testified that he and his family had suffered past persecution by Chinese officials and expected future persecution upon return. But Mr. Dai initially failed to disclose that his wife and daughter had both returned volun- tarily to China since accompanying him to the United States. When confronted, Mr. Dai told the “real story” of why he remained in the United States. The IJ found that Mr. Dai’s testimony undermined his claims and denied relief. On appeal, the BIA affirmed. Mr. Alcaraz- Enriquez and Mr. Dai each sought judicial review, and in each case, the Ninth Circuit noted that neither the IJ nor the BIA made an ex- plicit “adverse credibility determination” under the Immigration Na- tionality Act (INA). §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C).

——————

* Together with No. 19–1156, Garland v. Alcaraz-Enriquez, also on cer- tiorari to the same court.

2 GARLAND v. MING DAI Syllabus

Applying its own judge-made rule that a reviewing court must treat the noncitizen’s testimony as credible and true absent an explicit ad- verse credibility determination, the Ninth Circuit granted relief.

Held: The Ninth Circuit’s deemed-true-or-credible rule cannot be recon- ciled with the INA’s terms. Pp. 6–15.

(a) The Ninth Circuit’s rule has no proper place in a reviewing court’s analysis. The INA provides that a reviewing court must accept “administrative findings” as “conclusive unless any reasonable adjudi- cator would be compelled to conclude to the contrary.” §1252(b)(4)(B). And a reviewing court is “generally not free to impose” additional judge-made procedural requirements on agencies. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524.

Judicial proceedings in cases like these do not constitute “appeals” in which the “rebuttable presumption of credibility on appeal” applies absent an explicit credibility determination. §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). Here, there is only one appeal—from the IJ to the BIA. See §§1158(d)(5)(iii)–(iv). Subsequent judicial review takes place not by appeal, but by means of a “petition for review,” which the INA describes as “the sole and exclusive means for judicial review of an order of removal.” §1252(a)(5). A presumption of credi- bility may arise in some appeals before the BIA, but no such presump- tion applies in antecedent proceedings before an IJ or in subsequent collateral review before a federal court. This makes sense because re- viewing courts do not make credibility determinations, but instead ask only whether any reasonable adjudicator could have found as the agency did. The Ninth Circuit’s rule gets the standard backwards by giving conclusive weight to any testimony that cuts against the agency’s finding. Pp. 6–9.

(b) Mr. Alcaraz-Enriquez and Mr. Dai offer an alternative theory for affirming the Ninth Circuit. Because, they say, they were entitled to a presumption of credibility in their BIA appeals, they are entitled to relief in court because no reasonable adjudicator obliged to presume their credibility could have found against them. Even assuming that there was no explicit adverse credibility determination here, the Ninth Circuit’s reasoning is flawed for at least two reasons. Pp. 10–15.

(1) The presumption of credibility on appeal under the INA is “re- buttable.” And the INA contains no parallel requirement of explicit- ness when it comes to rebutting the presumption on appeal. Reviewing courts, bound by traditional administrative law principles, must “up- hold” even “a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286. In neither case did the Ninth

Cite as: 593 U. S. ____ (2021) 3 Syllabus

Circuit consider the possibility that the BIA implicitly found the pre- sumption of credibility rebutted. The BIA expressly adopted the IJ’s decision in Mr. Alcaraz-Enriquez’s case, which, in turn, noted that Mr. Alcaraz-Enriquez’s story changed from the time of the probation report to the time of the hearing—a factor the statute specifically identifies as relevant to credibility, see §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). And in Mr. Dai’s case, the BIA also adopted the IJ’s decision, which discussed specific problems with Mr. Dai’s demeanor, candor, and internal inconsistency—an analysis that certainly goes to the presumption of credibility even if the agency didn’t use particular words. See ibid. In each case, the Ninth Circuit should consider whether the BIA in fact found the presumption of credibility overcome. If so, it seems unlikely that the conclusion in either case is one no rea- sonable adjudicator could have reached. Pp. 10–13.

(2) The presumption of credibility applies with respect to credibil- ity but the INA expressly requires the noncitizen to satisfy the trier of fact on credibility, persuasiveness, and the burden of proof. §§1158(b)(1)(B)(ii), 1231(b)(3)(C), 1229a(a)(4)(B). Even if the BIA treats a noncitizen’s testimony as credible, the agency need not find such evidence persuasive or sufficient to meet the burden of proof. Here, the Ninth Circuit erred by treating credibility as dispositive of both persuasiveness and legal sufficiency. Pp 13–15.

884 F. 3d 858 and 727 Fed. Appx. 260, vacated and remanded. GORSUCH, J., delivered the opinion for a unanimous Court.

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

Can’t win ‘em all: The Round Table filed an amicus brief on behalf of the respondent in this case. Sadly, on this occasion, we didn’t convince anyone.☹️

Due Process Forever!

PWS

06-01-21

GARLAND & MAYORKAS DON’T “GET IT” — Who Makes Key Asylum Evaluations, Their Training, & Their “Group Culture” Are “Outcome Determinative” In “Life Or Death” Asylum Decisions — Failing To Recognize The Miller White Nationalist Culture @ DOJ & DHS & Not Bringing In Progressive Experts To Lead, Train, Adjudicate, & Judge Is A Killer, ☠️⚰️ Literally! — “The Biden administration now faces the Herculean task of restructuring our immigration system, not just by walking back Trump policies but also by building new ones that represent a country built on freedom, hope, and asylum. And it starts by properly and fairly listening to our asylum seekers.”

ElizabethL. Silver — Elizabeth L. Silver
American Author & Attorney
PHOTO: By David Zaugh on Elizabeth L. Silver Wevsite

https://lareviewofbooks.org/article/what-does-credible-fear-really-mean/

What Does “Credible Fear” Really Mean?

May 24, 2021 • By Elizabeth L. Silver

A FEW MONTHS BEFORE COVID-19 descended, I spent a week in Dilley, Texas, as a volunteer attorney at the South Texas Family Residential Center, which is essentially a holding center, specifically for women and their children. It’s the last stop before expedited removal and the place where many women and children are sent once they’ve claimed fear of persecution for the purpose of applying for asylum, or for those who have also been apprehended internally.

I was working with asylum seekers at the Mexican border port of entry, where people were held without answers for weeks, even months, while they awaited the next step in their asylum claims: the credible fear interview. If asylum seekers, fleeing persecution in their home countries, declare their fear of returning, they are detained as they await this interview, which will determine whether they can proceed to the next step: appearing before an immigration judge to request asylum. The conversation leads to a proverbial thumbs up or down, a trip to a courtroom or the border they just fled. If an asylum officer determines that their story has objective elements of credible fear, they may proceed to the next legal step. Officers essentially check required elements off a list, including what the specific act of persecution is, if the asylum seeker knows the reason why she’s been persecuted, how many times it happened, if she has sought help to remediate it, and more. In other words, asylum seekers’ lives depend on the hour or so answering questions spent either in a small room or, more likely, over the phone with a government official and interpreter.

Right now, our country again faces a critical point in defining our identity: are we in fact a country founded on freedom and designed to welcome those in need? The Biden administration states that it aims to help asylum seekers, but in order to do so we need to reevaluate how we approach asylum at all levels. That begins with reassessing how we determine credible fear.

During my brief time working in Dilley, I helped women prepare for their credible fear interviews. Many asylum seekers might not understand the process, nor necessarily know which details of their stories determine what the United States has deemed credible fear. Asylum is not a guaranteed right, and attorneys are not permitted to help during the interview; thus, preparation is key.

I spoke with a woman who fled five countries to escape her abusive boyfriend. The man followed her from country to country, raping her and threatening her life in each country. No matter where she fled in South and Central America, he followed her. Her five-year-old son, a product of one of these rapes, held her hand during our conversation in the detention center. I spoke with another woman who was threatened by a well-known drug cartel. Through her tears, she could barely communicate to me that they had already killed her brother, taken her money, patrolled the school where she taught, and routinely policed her town, spitting bullets as easily as words. As I interviewed the women, they cradled their young children, who were also visibly traumatized by what they had experienced in their home countries, by their journeys to the United States, and finally by the process to gain safety on this side of the border.

The credible fear interview places the burden of establishing fear on the applicant and is supposed to be non-adversarial, but given the nature of everything that precedes the interview — the lack of representation during the process, the jail-like location in which it takes place, the asylum officer’s constant questions — it feels adversarial. And this is just the first step. If the officer determines that she does have credible fear, the next step is to present her case to an immigration judge in a proper hearing.

. . . .

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

Sadly, and completely unnecessarily and inappropriately, there is nobody in a leadership position at DOJ right now with Elizabeth Silver’s practical insights and understanding of our broken asylum system and how it can be fixed! I’ll bet that neither Garland nor anyone on his senior staff has spent a week at Dilley or any comparable site in the “New American Gulag” trying to represent vulnerable asylum seekers in Garland’s “wholly owned star chamber courts.”

Has Garland even taken the time to observe what’s happening in Dilley, Pearsall, Texas (“home of the Big Peanut”); Jena, Louisiana; Lumpkin, Georgia (“where asylum cases go to die”), or any of the other comparable “courts” (that don’t function like “courts” at all)? Has he ever spoken to asylum applicants and their pro bono lawyers trying to negotiate his fatally flawed and intentionally “user unfriendly” system? Has he gone out and hired progressive “practical scholars” to fill in his “blind spots?”

Schmidt, Richardson, Big Peanut, Pearsall — Round Table Judges John Richardson and I have “seen the Peanut” and lived to tell about it! Pictured here in 2015 with then Pearsall JLC B. Atenis Madico.

That says loads about AG Merrick Garland — none of it good! “Ignorance,” “intransigence,” and “good enough for government work” are not acceptable approaches for the Biden Administration! Yet that’s exactly what Garland has “delivered” on immigration, human rights, racial justice, and gender equity during his first three months at “Justice.”

Of course it’s adversarial! Totally, these days!

The White Nationalist racists in the Trump regime like Miller, “Gonzo” Sessions, “Wolfman,” “Cooch Cooch,” and “Billy the Bigot” hated asylum seekers, people of color, and women and “biased out” the system and selection processes accordingly. Heck, in clear violation of the statute, Trump even replaced USCIS Asylum Officers with totally unqualified Border Patrol Agents to insure denial of even the most compelling claims!

Sessions bogusly bellyached about too many individuals passing “credible fear.” To the contrary, this was totally appropriate, given the “super generous” standards that are supposed to be applied at the “access to the system gateway.” The real systemic problem was in the historically poor performance of the Immigration Courts on asylum grants that got immeasurably worse under Sessions and Barr. (And has remained beyond horrible under Garland’s non-existent “leadership!”)

As almost all legitimate human rights experts would confirm, the “high rejection rate” later in Immigration Court results from far, far, far too many unqualified, non-expert, improperly selected, poorly trained, Immigration “Judges” — at both the trial and appellate levels — operating in a “culture of institutionalized racism, misogyny, and default denial” rather than the generous atmosphere and culture required by the Supremes in INS v. Cardoza-Fonseca but never truly implemented at EOIR.

“Herculean” although the task might appear, there are thousands of well-qualified immigration and human rights experts, most of them in the private sector right now, who could solve this problem and establish due process, fundamental fairness, real asylum expertise, and the rule of law in short order. But, Garland and Mayorkas have failed to remove the deadwood and the Trump/Miller holdovers and have not brought in the expert problem solvers to get this currently deadly, defective, illegal, and blatantly unconstitutional system under control. Additionally, qualified, expert Immigration Judges, REAL independent, courageous Federal Judges, not “go along to get along “bureaucratic retreads,” could also train and effectively supervise the Asylum Officer Corps, rather than woodenly and often ignorantly “rubber stamping” defective denials of “credible fear.”

Incredibly, Garland aggravated this festering problem “right off the bat” by improperly hiring 17 new, non-expert, not judicial quality Immigration Judges from flawed recruitments, skewed lists, and bogus recommendations developed by “Billy the Bigot” Barr! What an amazing lack of awareness and “open dissing” of humane progressive values and commitment to quality in Government!

Does this group represent the type of diverse, progressive candidates that President Biden would nominate for Article III Judgeships? OF COURSE NOT! Then, what possible excuse is there for “gifting” them some of the most powerful and important Federal Judgeships — those with probably more “life or death” authority and discretion over individuals than even the Supremes? No excuse whatsoever!

Our asylum system is totally “fixable.” Immediate improvements can be made and noticeable systemic changes could and should be in place before the end of this year! But, not the way that Garland and Mayorkas are going about it! The deadwood needs to go NOW, and be replaced with expert, progressive leadership, judges, and adjudicators!

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color! His indolent and ineffective approach to asylum decision making in Immigration Court is harming and killing vulnerable individuals and bringing our entire justice system into disrepute!

🇺🇸Due Process Forever!

PWS

05-25-21

⚖️SUPREME UNANIMITY: Immigrant Loses On Collateral Challenge To Legally Incorrect Removal Order! — U.S. v. Palomar-Santiago

U.S. v. Palomar-Santiago, Sup Ct., 05-24-21

https://www.supremecourt.gov/opinions/20pdf/20-437_bqmc.pdf

Syllabus by Court Staff:

Syllabus

UNITED STATES v. PALOMAR-SANTIAGO CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 20–437. Argued April 27, 2021—Decided May 24, 2021

Respondent Palomar-Santiago, a Mexican national living in the United States, was convicted in California state court of felony DUI in 1988. At the time, lower courts understood that conviction to be an “aggravated felony” subjecting a noncitizen to removal from the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Palomar-Santiago was removed following a hearing before an immigration judge and a waiver of his right to appeal. In 2017, Palomar-Santiago was found in the United States and indicted on one count of unlawful reentry after removal. See §1326(a). The statute criminalizing unlawful reentry provides that a collateral challenge to the underlying deportation order may proceed only if the noncitizen first demonstrates that (1) “any administrative remedies that may have been available” were exhausted, (2) “the opportunity for judicial review” was lacking, and (3) “the entry of the order was fundamentally unfair.” §1326(d). Palomar-Santiago moved to dismiss the indictment on the ground that his prior removal order was invalid in light of the 2004 holding in Leocal v. Ashcroft, 543 U. S. 1, that felony DUI is not an aggravated felony. Following Ninth Circuit precedent, the District Court and Court of Appeals held that Palomar-Santiago was excused from proving the first two requirements of §1326(d) because his felony DUI conviction had not made him removable. The District Court granted the motion to dismiss, and the Ninth Circuit affirmed.

Held: Each of the statutory requirements of §1326(d) is mandatory. Pp. 5–8.

(a) The Ninth Circuit’s interpretation is incompatible with the text of §1326(d), which provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. Section 1326(d)’s first

2

UNITED STATES v. PALOMAR-SANTIAGO Syllabus

two requirements are not satisfied just because a noncitizen was re- moved for an offense that should not have rendered him removable. The substantive validity of a removal order is quite distinct from whether the noncitizen exhausted administrative remedies or was deprived of the opportunity for judicial review. P. 5.

(b) Palomar-Santiago’s counterarguments are unpersuasive. First, he contends that further administrative review of a removal order is not “available” for purposes of §1326(a) when a noncitizen will not recognize a substantive basis to challenge an immigration judge’s conclusion that a prior conviction renders the noncitizen removable. The immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that very error. Ross, 578 U. S. 632, distinguished.

Second, Palomar-Santiago contends that §1326(d)’s prerequisites do not apply when a defendant argues that a removal order was substantively invalid. There can be no “challenge” to or “collateral attack” on the validity of substantively flawed orders, he reasons, because such orders are invalid when entered. This position ignores the plain mean- ing of both “challenge” and “collateral attack.”

Lastly, Palomar-Santiago invokes the canon of constitutional avoidance. But this canon “has no application in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494. Here, the text of §1326(d) unambiguously fore- closes Palomar-Santiago’s interpretation. Pp. 5–7.

813 Fed. Appx. 282, reversed and remanded.

SOTOMAYOR, J., delivered the opinion for a unanimous Court.

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

The lesson here for advocates: Exhaust those administrative appeals and judicial review even when your case seems hopeless. Otherwise, your client will be barred from taking advantage of later changes in the case law. After the fact, a “mere showing of fundamental unfairness” is not sufficient! And, you could be charged with malpractice by recommending that appeals and judicial review be waived.

This ought to generate more clogging of the Federal Courts, particularly the way the BIA is deciding cases these days. But, it’s what the Supremes unanimously asked for, so we have to take them at their word!

Due Process Forever!

PWS

05-24-21

⚖️👍🏼😎LAW YOU CAN USE: Professor Geoffrey Hoffman Tells Us How To Use Niz-Chavez v. Garland To Fight DHS/EOIR’s “Fake Date NTA” Travesty!

https://lawprofessors.typepad.com/immigration/2021/05/another-twist-on-niz-chavez-by-geoffrey-hoffman.html

Geoffrey writes on ImmigrationProf Blog:

Geoffrey Hoffman previously has blogged about the recent Supreme Court decision in Niz-Chavez v. Garland. Here is the sequel.

Another Twist on Niz-Chavez . . . by Geoffrey Hoffman

A fascinating twist on the factual scenario in Niz-Chavez is what to do if your client had an NTA with a so-called “fake date.” The “fake date” problem is one you will remember well if you practice immigration law before EOIR, and it garnered national attention in 2019 when ICE issued these fake dates for thousands of immigrants, many of whom showed up in court only to find that there was nothing on any judge’s docket to indicate they were scheduled for a hearing that day. Reports of fake dates were prevalent in Dallas, Orlando, Miami, Seattle, and I am sure other places as well. See news articles such as this one. In addition, and as a separate matter, there was a well-known so-called “parking date” (November 29) issued on thousands of NTAs and that was also never a “real date” as everyone knew.

There is an interesting theory about why the “fake dates” were issued in the first place: that the government was trying to respond to Pereira v. Sessions itself. Despite its argument in federal court to try to restrict Pereira as much as possible, in practice ICE tacitly was affirming, so the argument goes, that in Pereira the Supreme Court had defined, as we have argued all along, what is and what is not a proper and valid NTA. In an effort to immunize itself from responsibility for defective NTAs without any time or place of hearing, ICE thought it might make sense to input “fake dates” in their NTAs, thus (at least superficially it would seem) immunizing itself from the argument that the NTAs were defective for “lack” of a real date and place. Then the “real date” – according to the argument – could be issued as a follow-up in the form of a notice of hearing by EOIR.

The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes” – and I will discuss in the rest of this article why this should be the case and why it should not come as a surprise for several reasons.

It is arguably a much stronger case for the application of Niz-Chavez because the issuance of a “fake date” that was never intended to be used by EOIR in any way is affirmatively wrong. It is not just mere negligence by leaving “TBA” with a blank date and place of hearing on the NTA. ICE should not be able to hide behind an NTA where the information is filled in on the NTA but the information is patently false and made up or fabricated. Just as an asylum seeker who fabricates a date or other information on their forms cannot benefit from such information in applying for relief before the court, the government should get no benefit either from their incorrect and misleading actions. The counter-argument from the government will be that the NTA was valid “on its face” since it had some “date and place” in the document and therefore (a) stopped time for cancellation purposes and (b) conferred jurisdiction because it was “facially” valid.

This counter-argument is flawed. To embrace such a rationale would exalt form over substance. It also would allow an agency to game the system. It would also defeat the very mechanism that the Supreme Court set out in Pereira and now Niz-Chavez. Respondent should be entitled to reopen their proceedings in all “fake date” cases since a valid NTA was not filed in the immigration court. The only remaining issue will be proof. The respondent and his or her attorney will have to prove there was no hearing that was actually held on that day. If no hearing existed at all, then the stop time rule should not apply and the fake NTA cannot be “cured” by a subsequently issued notice by a different agency, that is EOIR, as per Niz-Chavez.

Finally, in reopening a client’s case it would be helpful if there were a showing of some effort on the part the respondent to check. Proof may be difficult and EOIR FOIA and other investigation will be important. Ideally, the client or the their attorney or both went to court but no hearing was on the docket that day, and there was an effort to check that was documented in some way. If there never was receipt of the NTA at all, whether containing a fake date or not, and an in absentia order was issued, then the question becomes whether jurisdiction could have vested at all in such a case. As I have argued, if the NTA is defective it cannot result in the vesting of jurisdiction. A fake date and place arguably cannot confer jurisdiction, even if the NTA was filed with the court. Since there was no hearing actually scheduled the NTA should be found defective under Pereira and Niz-Chavez.

K[evin] J[ohnson]

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

Sure sounds to me like ‘affirmative misconduct” by the USG that should stop them from relying on the “fake dates. In the “old days,” INS actually used to settle potential “affirmative misconduct” cases, rather than litigate.

By contrast, today’s DOJ seems perfectly willing shamelessly to defend a wide range of legally and ethically questionable conduct and then “blow off” criticism from the Article III Judiciary. Recently, a frustrated U.S. District Judge referred to Bureau of Prisons officials as “idiots.”

One might have thought that would have spurred some type of apology and corrective action from the DOJ. But, that doesn’t seem to have registered with Garland. He just keeps rolling along with Barr’s “Miller Lite” appointments while dissing advice from progressives who actually helped put him in his current job. About the only thing you can count on from Dems is that when it comes to progressive immigraton reforms and EOIR, they’ll blow it!

Thanks, Geoffrey, for your timely and creative “practical scholarship.” Of course with better leadership, the Biden Administration could solve this problem without protracted litigation that often takes years and produces inconsistent results before the Supremes or Congress can resolve them. In the meantime, lives unnecessarily are ruined and the system becomes more inefficient and unfair.

Garland should appoint progressive practical scholars like Geoffrey to the BIA and senior management at EOIR, OIL, OLP, and the SG’s Office and let them “lead from above” — rather than having to fight bad interpretations and worst practices from the outside.

In this case, the DHS/EOIR “fake date policy” was both fraudulent and unethical. Remember that some folks actually showed up at Immigration Court buildings, often with families in tow, after having traveled hundreds of miles, @ 3:00 AM on Sunday mornings (or on a Federal Holiday or some other bogus date) only to find out that the “joke” was on them.

And, let’s not forget folks, that thanks to the BIA’s permissive attitude (when it comes to the Government, but not with individual rights), under the now “being phased out” “Remain in Mexico Program” (a/k/a “let “em Die In Mexico”), folks basically got NTAs with the equivalent of this: “Maria Gomez, somewhere on some Calle in Tijuana, Mexico.” But, the BIA said that this was basically “good enough for Government work.”

We should also remember that the Fifth Amendment’s Due Process Clause guarantees the individual’s rights against the Government, not the other way around! But, you sure wouldn’t know that from reading BIA and AG precedents issued under the Trump kakistocracy.

Meanwhile, IJs and the BIA under Garland continue to “in absentia” folks for being a few minutes late for a hearing or misreading an NTA in a language they can’t understand. Anybody had a problem with their U.S. Mail lately? We have, in our “upper middle class neighborhood” in Alexandria, VA. Yet, EOIR and some Article IIIs continue to promote the “legal fiction” of a “presumption of proper (and timely) delivery” of notices sent by regular U.S. Mail.

Until, Garland has the backbone to restore ethics and the rule of law at EOIR and the rest of the DOJ, particularly by reassigning or otherwise removing those who “went along to get along” and replacing them with ethical, qualified, experts from the NDPA who will speak truth to power and hold immigration enforcement bureaucrats accountable, our justice system will continue its tailspin!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

O5-15-21

🛡⚔️👍🏼“SIR JEFFREY” CHASE — Garland’s Immigration “Judges” Pull The Ol’ “Bait & Switch” — They Only Are “Judges” When “OIL” Is Trying To Convince Ethically & Legally Challenged Article III Courts To “Defer” To EOIR Decisions — Otherwise, They Are Expected To Act Like DOJ ”Grundoons” Mindlessly Carrying Out The Executive’s Agenda Cloaked In Quasi-Judicial Disguise!

Grundoon
From Walt Kelly’s “Pogo”
SOURCE: Pininterest

Grundoon: A diapered baby groundhog (or “woodchunk” in swamp-speak). An infant toddler, Grundoon speaks only gibberish, represented by strings of random consonants like “Bzfgt”, “ktpv”, “mnpx”, “gpss”, “twzkd”, or “znp”. Eventually, Grundoon learns to say two things: “Bye” and “Bye-bye”. He also has a baby sister, whose full name is Li’l Honey Bunny Ducky Downy Sweetie Chicken Pie Li’l Everlovin’ Jelly Bean. [From the Walt Kelly comic strip “Pogo.”]

https://en.wikipedia.org/wiki/Pogo_(comic_strip)

https://www.jeffreyschase.com/blog/2021/4/29/the-dojs-contradictions

Contact

The DOJ’s Contradictions

In a recent blog post, I discussed the difficulty in establishing asylum based on a political opinion expressed against MS-13. In the specific case discussed, the Board of Immigration Appeals reversed the Immigration Judge’s finding that the asylum-seeker had expressed a political opinion to MS-13 members.1 In reversing the Immigration Judge, the BIA specifically stated as to MS-13 that “the gangs are criminal organizations, and not political or governmental organizations and gang activities are not political in nature.” The BIA has repeatedly expressed this same view (using this or similar boilerplate language) in its decisions denying asylum. In the particular case discussed in my blog post, a split panel of the Second Circuit Court of Appeals could not find enough evidence of record to compel the majority to overturn the BIA’s conclusion.

The BIA is of course a part of the U.S. Department of Justice; its judges are appointed by and employed by the Attorney General. Former Deputy Attorney General Rod Rosenstein was one of the Department officials to make the following point to a class of new Immigration Judges in March 2019:

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.2

The clear message being conveyed is “Don’t get any big ideas of judicial independence and neutrality; you work for ‘Team Justice,’ and you will behave accordingly.” Am I alone in thinking that the motto cited by Rosenstein, “when you accept a privilege, you incur an obligation,” here comes across as a boss reminding new employees where their loyalties lie rather than as a commitment to truth and justice?

As wrong as this message is when conveyed to judges who are supposed to enjoy the independence and neutrality to rule against the Department of Justice and the Attorney General when the facts and law compel such an outcome, let’s examine this view for the consistency of its application as to all DOJ employees. Presumably, the Board’s official stance that MS-13 is not a political organization and that its activities are criminal and not political in nature enjoys the Department’s seal of approval. In fact, other Department of Justice attorneys, working for the Office of Immigration Litigation, defend that view when the BIA”s decisions are reviewed on appeal by the Circuit Courts. I’m not aware of any Attorney General action to certify a BIA decision expressing this view in order to correct the Board’s position on this issue, or even to remand to the Board for further consideration of its position in light of other conflicting views within the Department.

Regarding such conflicting views, I was recently made aware of a criminal indictment drafted by the U.S. Attorneys’ Office in the Eastern District of New York.3 The indictment was filed in December, 2020, while the Trump Administration was still in office. The opening paragraph of the indictment states that MS-13 is a transnational criminal organization engaged in terrorist activity, and that its members use violence “in order to obtain concessions from the government of El Salvador, achieve political goals and retaliate for government actions against MS-13’s members and leaders.” (emphasis added).

The indictment contains a specific section titled “Political Influence in El Salvador.” The indictment states that a unit of MS-13, the Ranfla Nacional, “gained political influence as a result of the violence and intimidation MS-13 exerted on the government and population of El Salvador.” It continued that the organization exercised leverage on the Salvadoran government through its control on the level of violence. The indictment states that in 2012, MS-13 exercised its leverage to negotiate a truce with the ruling FMLN party and its rival 18th Street “to reduce homicides in El Salvador in return for improved prison conditions, benefits and money.” According to the indictment, MS-13 also negotiated a similar agreement with the rival ARENA party, promising to deliver votes in return for benefits. The indictment states that over time, “the Ranfla Nacional continued to negotiate with political parties in El Salvador and use its control of the level of violence to influence the actions of the government in El Salvador.”

The indictment also contains a section explaining the purpose of the Ranfla Nacional. The second specific goal listed is: “Influencing the actions of governments in El Salvador and elsewhere to implement policies favorable to MS-13.”

The attorneys who made the above claims in an indictment filed in Federal District Court are also employees of the U.S. Department of Justice. They are also members of the executive branch, following lawful instructions from the Attorney General, and sharing a duty to enforce the law. In the Second Circuit case I recently discussed, other Department of Justice attorneys in their brief to the court defended the Board’s decision by depicting MS-13 as “an institution that is entirely non-governmental – that is…a group of criminals who, in fact, reject the rules set out by the government.” Noticeably absent from the same brief was any mention that this “rejection of the rules set out by government” includes strategies to pressure said government into undertaking specific actions, as well as its entering into negotiations and ultimately agreements with political parties, the terms of which include MS-13’s delivering votes in return for the parties’ commitment to enacting beneficial policies.

So how can it be that attorneys in one office of the Department of Justice argue that MS-13 as an organization is engaged in exerting political influence to achieve its political goals, and at the same time, another group of attorneys within the same Department of Justice can sign orders sending victims of the same MS-13 to their death by employing a boilerplate sentence that MS-13 is not a political organization and its activities are not political in nature? And that the decisions of that latter group are then defended by a third group of Department attorneys on appeal who make no mention of the conflicting arguments? Let’s remember that, according to Rosenstein, these attorneys were taught from day one that their duties as Department of Justice employees include gathering the facts and seeking the truth.

In 1997, a very different BIA wrote the following in a decision that, although still binding as precedent, seems long forgotten:

immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, the handbook for trial attorneys states that “[t]he respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness.” Handbook for Trial Attorneys § 1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992)(finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that “might sometimes trump the desire to pound an opponent into submission”); Reid v. INS, 949 F.2d 287 (9th Cir. 1991)(noting that government counsel has an interest only in the law being observed, not in victory or defeat).4

This matter deserves the immediate attention of Attorney General Merrick Garland. The ability of asylum seekers to receive a fair review of their claims based on accurate information is a matter of life and death. At this early stage of the Biden Administration, it is critical that the Department send a clear message that the “obligation” mentioned in its motto is to serve an ideal of justice that is independent of the particular politics of those temporally in charge.

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Notes:

Zelaya-Moreno v. Wilkinson, No. 17-2284, ___ F.3d ___ (2d Cir., Feb. 26, 2021).

https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly.

E.D.N.Y. Docket No.: 20-CR-577 (JFB). The Department of Justice’s Press Release can be found here: https://www.justice.gov/usao-edny/pr/ms-13-s-highest-ranking-leaders-charged-terrorism-offenses-united-states.

Matter of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997).

APRIL 29, 2021

Reprinted by permission.

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

As most outside the nativist world know, the BIA’s position that Northern Triangle gangs aren’t political in nature and action is absurd! For Pete’s sake, these guys negotiate “peace treaties” with governments, control large swaths of territory, manipulate “public death rates” for political gain, aid or punish political candidates and police, collect taxes, control jobs, and have economic policies. Sure sounds like a quasi-governmental, clearly political entity to me. Somewhere, there is a dissent of mine in an old published CAT case saying approximately that.

At least at one point, gangs in El Salvador controlled more jobs than did the Salvadoran Government! No competent, unbiased group of adjudicators (not to mention supposed “experts”) could have reached the BIA’s ridiculous, clearly politicized conclusions!

Sadly, to date, Judge Garland has followed in the footsteps of his dilatory Dem predecessors by destroying lives, promoting injustice, and blowing the Dems’ best chance to build a progressive, due process oriented, human rights advancing judiciary that also would help resolve America’s failure to come to grips with the 1951 U.N. Refugee Convention and its key role in our legal immigration system as well as being a prerequisite to achieving racial justice in America.

Supposedly, these are the goals of the Biden Administration. Unfortunately, Garland, Monaco, and Gupta haven’t gotten the message, although it has been “delivered” time after time by numerous experts and advocates!

A few historical notes:

I was on the en banc BIA that decided Matter of S-M-J-, cited by Jeffrey. It was written by Judge Michael J. Heilman, a fellow Wisconsinite who once had worked for me at the “Legacy INS” General Counsel, following service as a State Department consular officer. That case “originated” on a three-member panel of Heilman, the late Judge Lauri Steven Filppu, and me. It reflects the “government wins when justice is done” message that I had incorporated into INS attorney training years earlier, as well as fealty to UN Handbook standards encouraged by the Supremes in INS v. Cardoza-Fonseca, and the “best practices” that bygone BIA was consciously and aggressively advancing.
Former DAG Rod Rosenstein was once a respected career prosecutor who served Administrations of both parties. Then, he “sold out” to the Trump Administration and its neo-fascists. Although that probably should have ended his legal career, he’s currently enjoying life in “big law” while those victims harmed and wronged by the illegal and unethical policies (or, in some cases their survivors) he furthered continue to suffer.

Radical progressive due process reforms @ EOIR, starting with wholesale personnel changes and revocation of restrictionist, racist, misogynist policies and practices is long overdue. Nearly two months into his tenure Judge Garland has yet to demonstrate awareness of the need for immediate, decisive action. Meanwhile the bodies continue to pile up and the “adverse decisions” from the Article IIIs bearing his name and tarnishing his reputation continue to roll in!

Actually, Judge, each wrong decision from the BIA represents a human life ruined, often irrevocably. Is that the type of “impact” on American justice that you intend to leave as your “legacy?”

EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”)
By Pieter Bruegel The Elder
Public Domain

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

05-01-21

☠️👎🏽⚰️🤮 PERVERSION OF “JUSTICE @ JUSTICE” — Immigration “Courts” Were Born Of A Bogus “National Security” Rationale — “[Author Alison] Peck couldn’t wrap her mind around the fact that these high-stakes cases with potentially life-or-death consequences were not being decided by impartial jurists in an independent court, but within the Department of Justice, a law enforcement agency.” — New Book By Professor Alison Peck Makes Overwhelming Case For Progressive Reforms, Impartial Expert Judges, Judicial Independence!

Professor Alison Peck — Professor & Author Alison Peck
Director, Immigration Clinic
West Virginia Law
PHOTO: West Virginia Law website

https://www.motherjones.com/politics/2021/04/the-original-sin-of-americas-broken-immigration-courts/

From Mother Jones:

The Original Sin of America’s Broken Immigration Courts

A new book reveals how this troubled system began with FDR and wartime paranoia.

Isabela Dias

Let our journalists help you make sense of the noise: Subscribe to the Mother Jones Daily newsletter and get a recap of news that matters.

During the Trump administration, Alison Peck started to see more of her cases have an outcome she describes as “a door just slammed” in the clients’ faces. A law professor and co-director of the Immigration Law Clinic at West Virginia University College of Law, Peck grew concerned that paths to immigration relief previously available to them were no longer an option. The explanation for it was an increasingly common practice whereby the US Attorney General, who is a political appointee, would self-refer cases previously decided by an immigration judge and then use them as vehicles for broad policy changes. These precedent-setting determinations included restricting asylum for victims of domestic violence and gang violence, and limiting immigration judges’ power to manage their dockets by temporarily closing low-priority cases. Some of Peck’s clients were impacted by both decisions. “It was very distressing to see this happen and have to tell people midway through the game that the rules had been changed,” she says. Hence, the experience of the door slammed shut.

Peck couldn’t wrap her mind around the fact that these high-stakes cases with potentially life-or-death consequences were not being decided by impartial jurists in an independent court, but within the Department of Justice, a law enforcement agency. “It didn’t make sense to me, and it didn’t fit with anything I knew about administrative law theory,” she says. So Peck decided to look for an explanation for how this anomalous system had been set up in the first place, and what rationale, if any, sustained it despite a general consensus that the existing structure is nothing if not broken.

Peck shares her findings in the upcoming book The Accidental History of the US Immigration Courts: War, Fear, and the Roots of Dysfunction, a revealing account of how wartime paranoia and xenophobia shaped a system that has been with us for over 80 years. “As long as the immigration courts remain under the authority of the Attorney General, the administration of immigration justice will remain a game of political football—with people’s lives on the line,” Peck writes. I called Peck to discuss what World War II and Nazi Germany have to do with modern-day US immigration courts, and how Congress can fix an “irrationally constructed” system.

You trace the origins of the architecture of immigration courts back to two pivotal moments. The first is 1940, when President Franklin D. Roosevelt moved the immigration services from the Department of Labor into the Department of Justice. How did that come about?

Immigration services had long been treated as kind of a stepchild within the Department of Labor. With the New Deal and the labor strife throughout the 20s and into the 1930s, the Secretary of Labor had the obligation to deal fairly and impartially with union leaders, many of whom were immigrants, but then also had the responsibility of investigating and deporting immigrants who were in the country unlawfully. That tension started to become pretty extreme. Francis Perkins, the Secretary of Labor at the time, ended up being in the political crosshairs in part because of her handling of immigration cases. She was in favor of immigration being moved out of the Department of Labor, but she didn’t think it was very appropriate to have it in the Department of Justice because it shouldn’t be associated with crime and law enforcement.

In fact, Roosevelt had resisted members of Congress and the public for over a year. He had lawyers in the DOJ study the issue, and they sent him a report concluding that moving the immigration services into the DOJ would be inappropriate and could change the understanding of immigration for the country. His attorney general at the time, Robert H. Jackson—who later became a Supreme Court justice and also presided at the Nuremberg trials—advised him against it, calling for a sort of temporary wartime agency that dealt with the threat of sabotage, rather than setting up a system that invites an entry of politics into immigration cases. So it’s not as if Roosevelt and his advisers didn’t understand the risks of what they were doing. They did, and they resisted it for some time. But because of the fear and the nature of the threat and things that they just couldn’t have known at the time, they decided, for lack of any better option, that they would do this.

At the time, the Roosevelt administration justified the move as a necessary response to a national security threat. How exactly did the war in Europe ultimately influence his decision?

In 1939, much of Congress was still pretty isolationist, and there was a lot of skepticism about Roosevelt’s willingness to get involved in the war and make the United States a leading force. The occupation of Denmark by the Nazis in April 1940 was really a game changer. The isolationism of the United States up until that point was based on this notion that we’re an ocean apart and protected by geography—what happens in Europe can’t affect us directly. But Denmark had possession of Greenland, so the Nazis had a base in North America where they could refuel, restock, and plan attacks from there.

By that time, the State Department and the FBI were both actively tracking what they saw as the “Fifth Column” threat: this idea that foreign nationals might be plotting to take over from within the country without anyone ever knowing what happened. When the invasion of France and the Low Countries occurred in May [1940], many people assumed that this must have been because people in high level positions within these countries were simply raising the drawbridge and letting the Nazis through without resistance. [Roosevelt] was very influenced by the visit that the Undersecretary of State Sumner Welles had paid to the Axis powers. He came back very worried and told Roosevelt “I think we need to make this move.” After Roosevelt had said no for a year, he changed his mind and within three days, it was done.

This decision looks very different in retrospect, doesn’t it?

It’s understandable in historical context that Roosevelt felt that he needed to do something to protect against what could be a serious threat. But in hindsight, he realized the fears were misplaced. As it happened, the Nazis kept their plans very close to the vest and didn’t trust people outside their inner circle. This “Fifth Column” was actually just propaganda and the enemy stoking fear in order to create insecurity and undermine Allies’ morale.

“What happened was that people were understandably fearful at times of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.”

Looking back now, 80 years later, it certainly has had the effect that Roosevelt and his advisors feared of making immigration be equated with crime and caught up with the political process. It really is sort of a function of historical accidents that we have the system where it is. It’s not the case that anyone ever said it would make good sense from an administrative law perspective to have immigration adjudication done in the Department of Justice under the control of the Attorney General. That was not a conversation that ever occurred. What happened was that people were understandably fearful at the time of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.

You write that the scenario Roosevelt had feared sixty years earlier of a foreign attack from within the country came to be in the early 2000’s with 9/11, and that in turn overhauled immigration policy in the twenty-first century. What did that overhaul mean specifically for immigration courts?

I looked to see whether there had ever been serious consideration of changing this system in the last 80 years, particularly after the realization that this so-called “Fifth Column” never really existed, and this was really just a response to Nazi propaganda that we are still stuck with. What I found was that in the 90s, there was some movement toward reform, but then 9/11 happened and changed the way Americans were thinking about foreign nationals, immigration, visas, and the relationship between the State Department and the FBI or other domestic law enforcement. For some time, it appeared that the immigration courts would be moved into [the recently created Department of] Homeland Security. Many people in Congress, especially Democrats, but some Republicans as well, were concerned about this. Maybe having it in a law enforcement agency wasn’t perfect, but having it in this national security agency, where it would once again be closely aligned with the prosecutors, would be even worse. With relatively little focus on the immigration courts at the time, the best that could be accomplished was to keep them in the Department of Justice instead of moving them into the Department of Homeland Security. It was an opportunity for reform that then got swept away by the events of 9/11.

After that, the issue sort of went underground again, until it started to appear on people’s radar screens during the Trump administration. Until then, the immigration courts were mostly allowed to function independently, and so people weren’t as up in arms about it. For the most part, Attorney Generals were pretty hands off and so people thought: Well, it’s a system that doesn’t make a whole lot of sense, but it mostly works, so it’s not that important to make this institutional change. I think it’s an unfortunate combination of political forces that has led the immigration courts to sort of limp along in this way.

“The Trump administration exposed the vulnerability that was already there in the system.”

Immigration courts were dysfunctional in nature long before Trump took office, but under his administration that gained a new dimension. What did this unprecedented politicization of the courts look like?

The Trump administration exposed the vulnerability that was already in the system. What we saw was a much higher level of intervention, about four times higher than even the George W. Bush administration, which had been the most active prior. One of the ways that happened was through the frequency with which the Trump administration used the Attorney General’s self-referral power, which means the Attorney General can take a case away from an immigration judge at any time and decide it as he wishes. In the Trump administration, that power was used 17 times in four years. Previously, the highest number had been 10 times over eight years.

In one case, the Attorney General made a statement that victims of domestic violence and gang violence would generally not meet the asylum standard. Officers within the Department of Homeland Security were confused by the scope of the decisions that were unprecedented. That confusion is still ongoing, and it affects what happens every day in the immigration courts. Immigration judges are feeling that their independence has been highly compromised, and they are hamstrung by the decisions of the Attorney General to do things that they actually think are just. This system that everyone tolerated for a while, assuming and hoping there wouldn’t be abuses, has now shown to be very clearly subject to abuses.

Woman Tortured — Jeff “Gonzo Apocalypto” Sessions’s outrageously wrong, unethical decision in Matter of A-B- illegally condemned many brown-skinned refugee women from Central America to abuse, torture, and even death. So far, Judge Garland has failed to intervene to correct the record, restore the rule of law, and end the unnecessary suffering!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

There’s currently a backlog of more than 1.3 million cases. Yet, despite what seems to be a consensus that immigration courts are not working as they should, we still have the same system from 80 years ago. Are there any solid arguments to justify keeping the immigration courts under the DOJ?

There may be an assumption by people that it was set up this way for a reason, and that we might be losing something if we changed it. When we look at the history, it makes clear that it really was a historical accident that we ended up with this system. There never was a coherent rationale. It was something that was done as a matter of exigency, when there wasn’t a good solution. And so they took a bad solution instead and stuck with it. There’s not a whole lot of efficiency or institutional knowledge that’s being gained by having these immigration courts within the Department of Justice.

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up.” Largely self-created backlogs resulting from “Aimless Docket Reshuffling” by unqualified, xenophobic DOJ politicos and incompetent EOIR bureaucrats have become endemic at the totally dysfunctional Immigration Courts. There are lots of great ideas in the NDPA on how to slash the backlog immediately without denying anyone due process. But, Judge Garland to date has ignored them.

I think most people in the United States are not even aware that the immigrant courts are not part of our federal judiciary. They may be assuming that there’s a certain fairness built in that we expect from the federal courts when, in fact, it isn’t there. These are not courts; they are part of a law enforcement agency. The system is actually set up in such a way that it allows for political decision-making to become part of these court cases in a way that Americans don’t usually think of court cases being decided. That’s really inconsistent with American notions of justice, fairness, and due process. We think that those are decided by what we hope and aspire to be independent judges who are not part of the political branches and not subject to the whims of politics. From that fundamental misunderstanding, if we look deeper, we can see a desire for change. We have the choice to change that now.

Your book seems to suggest that the problem runs way deeper than what stopgap measures like hiring more immigration judges could accomplish. What do you think is an appropriate approach to creating independent immigration courts?

Adding more immigration judges or changing the way immigration judges are hired to have more diversity are not bad ideas in and of themselves, but they don’t get at the root of the problem. The root of the problem is that the immigration courts were never really intended to be impartial courts. Under our basic founding Constitutional principles of due process and separation of powers, we can and should protect the adjudication process and make it separate from the law enforcement process. The Biden administration could play a role by urging Congress to seriously consider and to pass legislation that would separate immigration courts into an Article I court system. Article I courts are a relatively independent system set up by Congress and, by definition, would create separation between the immigration courts and the executive branch. That would give us something that approaches the fairness that people deserve.

This interview has been edited for length and clarity.

FACT:

Mother Jones was founded as a nonprofit in 1976 because we knew corporations and the wealthy wouldn’t fund the type of hard-hitting journalism we set out to do.

Today, reader support makes up about two-thirds of our budget, allows us to dig deep on stories that matter, and lets us keep our reporting free for everyone. If you value what you get from Mother Jones, please join us with a tax-deductible donation today so we can keep on doing the type of journalism 2021 demands.

EOIR continues to apply “old time methods” to those poor souls stuck at the “retail level” of American “justice,” as “Team Garland” ignores the screams for help!

Trial By Ordeal — Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

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

Clearly, experts like Professor Alison Peck, who understand and have personally experienced the abominable, unconstitutional, life threatening unfairness of this broken and totally dysfunctional system should be the judges and intellectual leaders, particularly at the appellate level, of a reformed, independent Immigration Court system.

In a functioning legal system, successful asylum seekers would fill their essential role in increased legal immigration that has been denied them by a distorted, racist, misogynist system that treats them as a “problem to be solved” — largely because of their skin color — rather than humans entitled to our protection who will contribute to our future.

Indeed, every day we illegally turn away many of those we need for our future in their hour of direst need! Such selfishness, cruelty, mockery of the rule of law, and short-sightedness does not reflect well on our nation!

“It’s not rocket science,” but so far Garland, Monaco, and Gupta have “blown off” the advice of human rights experts like Professor Peck and refused to consult, elevate, or otherwise empower those who could bring due process, order, and expert, professional judging to the Immigration Courts!

Judge Merrick Garland — Judge Merrick B. Garland, U.S. Attorney General. Why is he carrying out Stephen Miller’s White Nationalist policies @ EOIR?
Official White House Photo
Public Realm

Vanita Gupta
Associate AG, previously a widely respected expert in civil rights, human rights, and racial justice has so far failed to have an impact on institutionalized racism, misogyny, and reactionary “judging” at EOIR!
Photo: Brookings Institution, Paul Morigi, Creative Commons License

Lisa Monaco
Deputy AG, newly confirmed, but appears to have little awareness and no plans for aggressively reforming the worst “courts” in America, spewing out injustice at the DOJ.
Official USG Photo, Public Realm

Due Process Forever!

PWS

04-29-21

⚖️🇺🇸🗽👍🏼👨🏻‍⚖️JUSTICE GORSUCH LEADS 6-3 SUPREMES’ MAJORITY IN HANDING MIGRANTS HUGE VICTORY OVER DHS & EOIR INTRANSIGENCE/INCOMPETENCE IN “STOP TIME RULE” CASE — Niz-Chavez v. Garland — “Round Table” Amicus Plays A Role In Success! — “A single notice—rather than 2 or 20 documents!”

Associate Justice Neil Gorsuch — Associate Justice Neil M. Gorsuch; photograph by Franz Jantzen, 2017.

Niz-Chavez v. Garland, U.S. Supreme Court, 04-20-21

https://www.supremecourt.gov/opinions/20pdf/19-863_6jgm.pdf

SYLLABUS BY COURT STAFF:

Syllabus

NIZ-CHAVEZ v. GARLAND, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 19–863. Argued November 9, 2020—Decided April 29, 2021

Nonpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years. 8 U. S. C. §1229b(b)(1). But the so- called stop-time rule included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the pe- riod of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding under §1229a. §1229b(d)(1). The term “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges against the al- ien and the time and place at which the removal proceedings will be held. §1229(a)(1). A notice that omits any of this statutorily required information does not trigger the stop-time rule. See Pereira v. Ses- sions, 585 U. S. ___. Here, the government ordered the removal of pe- titioner Agusto Niz-Chavez and sent him a document containing the charges against him. Two months later, it sent a second document, providing Mr. Niz-Chavez with the time and place of his hearing. The government contends that because the two documents collectively specified all statutorily required information for “a notice to appear,” Mr. Niz-Chavez’s continuous presence in the country stopped when he was served with the second document.

Held: A notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individ- ual’s removal hearing specified in §1229(a)(1). Pp. 4–12.

(a) Section 1229b(d)(1) states that the stop-time rule is triggered by serving “a notice,” and §1229(a)(1) explains that “written notice” is “re- ferred to as a ‘notice to appear.’ ” Congress’s decision to use the indef- inite article “a” suggests it envisioned “a” single notice provided at a

2

NIZ-CHAVEZ v. GARLAND Syllabus

discrete time rather than a series of notices that collectively provide the required information. While the indefinite article “a” can some- times be read to permit multiple installments (such as “a manuscript” delivered over months), that is not true for words like “notice” that can refer to either a countable object (“a notice”) or a noncountable abstrac- tion (“sufficient notice”). The inclusion of an indefinite article suggests Congress used “notice” in its countable sense. More broadly, Congress has used indefinite articles to describe other case-initiating plead- ings—such as an indictment, an information, or a civil complaint, see, e.g., Fed. Rules Crim. Proc. 7(a), (c)(1), (e); Fed. Rule Civ. Proc. 3—and none suggest those documents might be delivered by installment. Nor does the Dictionary Act aid the government, as that provision merely tells readers of the U. S. Code to assume “words importing the singular include and apply to several persons, parties, or things.” 1 U. S. C. §1. That provision means only that terms describing a single thing (“a no- tice”) can apply to more than one of that thing (“ten notices”). While it certainly allows the government to send multiple notices to appear to multiple people, it does not mean a notice to appear can consist of mul- tiple documents. Pp. 4–9.

(b) The IIRIRA’s structure and history support requiring the govern- ment to issue a single notice containing all the required information. Two related provisions, §§1229(e)(1) and 1229a(b)(7), both use a defi- nite article with a singular noun (“the notice”) when referring to the government’s charging document—a combination that again suggests a discrete document. Another provision, §1229(a)(2)(A), requires “a written notice” when the government wishes to change an alien’s hear- ing date. The government does not argue that this provision contem- plates providing “the new time or place of the proceedings” and the “consequences . . . of failing . . . to attend such proceedings” in separate documents. Yet the government fails to explain why “a notice to ap- pear” should operate differently. Finally, the predecessor to today’s “notice to appear” required the government to specify the place and time for the alien’s hearing “in the order to show cause or otherwise.” §1252(a)(2)(A). The phrase “or otherwise” has since disappeared, fur- ther suggesting that the required details must be included upfront to invoke the stop-time rule. Indeed, that is how the government itself initially read the statute. The year after Congress adopted IIRIRA, in the preamble to a proposed rule implementing these provisions, the government acknowledged that “the language of the amended Act in- dicat[es] that the time and place of the hearing must be on the Notice to Appear.” 62 Fed. Reg. 449 (1997). Pp. 9–13.

(c) The government claims that not knowing hearing officers’ avail- ability when it initiates removal proceedings makes it difficult to pro-duce compliant notices. It also claims that it makes little sense to re- quire time and place information in a notice to appear when that in- formation may be later changed. Besides, the government stresses, its own administrative regulations have always authorized its current practice. But on the government’s account, it would be free to send a person who is not from this country—someone who may be unfamiliar with English and the habits of American bureaucracies—a series of letters over the course of weeks, months, maybe years, each containing a new morsel of vital information. Congress could reasonably have wished to foreclose that possibility. And ultimately, pleas of adminis- trative inconvenience never “justify departing from the statute’s clear text.” Pereira, 585 U. S., at ___. The modest threshold Congress pro- vided to invoke the stop-time rule is clear from the text and must be complied with here. Pp. 13–16.

789 Fed. Appx. 523, reversed.

GORSUCH, J., delivered the opinion of the Court, in which THOMAS, BREYER, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.

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

This is the type of case where I had hoped that Justice Gorsuch would “stick to his interpretative guns” by stopping the Government from basically redesigning clear statutory requirements “willy nilly” to suit their own purposes and disadvantage respondents. And, he came through! Big time! I’ve been critical of Justice Gorsuch in the past and am likely to be so again in the future. But, in this case, he did the right thing, and I, for one, am grateful!

Most encouraging, Justice Gorsuch “got” the way that the DHS and EOIR, with the deck already unfairly stacked in their favor, manipulate clear legal requirements for their own nefarious purposes and to the disadvantage of those struggling for justice in an inherently unfair system. There is absolutely no doubt that receiving “piecemeal notice” — incomplete and often sent to incorrect addresses or “personally served” without the proper reading and explanations — works to further disadvantage respondents.

Indeed, illegal, ineffective notices — some setting hearings on “phantom dates” and “imaginary times” — lead directly to an over abundance of “in absentia” orders and consequent illegal removals. Some unrepresented individuals understand how to reopen their hearings for lack of notice — but many are clueless; the Government system strives to keep them that way to “jack up the numbers,” meet “quotas,” and improve stats. Worse yet, Congress sometimes uses the “bogus stats” generated by DOJ and DHS to write legislation, conduct oversight, and establish policy. This is an astoundingly broken, dysfunctional, and intentionally unfair system — a disgrace to our entire justice system and our national conscience each day it is allowed to continue to operate in its abusive ways!

The majority in this case was both very interesting, and at least mildly encouraging, for those of us who believe in due process and fundamental fairness for all persons, including migrants, under law. In addition to Trump appointees Justice Gorsuch and Justice Barrett, another GOP conservative appointee, Justice Thomas, joined Justices Breyer, Kagan, and Sotomayor in the majority!

And, although this case has (incorrectly) seemed “hyper technical” to some Supremes’ watchers unfamiliar with immigration, it will have huge impact — forcing reopening and “redos” in tens of thousands, perhaps hundreds of thousands, of cases in the already backlogged (1.3 million cases) Immigration Court. That will be the direct result of poor jurisprudence by the BIA, lousy court administration by EOIR, and horrible policy decisions by DHS.

Just another prime example of how “haste makes waste” enforcement gimmicks continue to cause unnecessary chaos in the system. Why not just appoint progressive experts as Immigration Judges and BIA Appellate Judges. Qualified jurists who will understand immigration law, due process, and “get in right” in the first instance? Certainly seems like a reasonable approach. What is Judge Garland waiting for?

This, in turn should add to the already loud cries (from virtually everywhere outside Judge Garland’s universe and the restrictionist right) for sensible, readily available backlog reductions and accelerated movement toward better judges and independence in the Immigration Courts, not to mention better management in the DHS enforcement programs.

Here’s my favorite quote from Justice Gorsuch’s majority opinion:

In the end, though, all this speculation is beside the point. The dissent tries to predict how the government will react to a ruling that requires it to follow the law and then pro- ceeds to assess the resulting “costs” and “benefits.” Post, at 17, 20–21. But that kind of raw consequentialist calcula- tion plays no role in our decision. Instead, when it comes to the policy arguments championed by the parties and the dissent alike, our points are simple: As usual, there are (at least) two sides to the policy questions before us; a rational Congress could reach the policy judgment the statutory text suggests it did; and no amount of policy-talk can overcome a plain statutory command. Our only job today is to give the law’s terms their ordinary meaning and, in that small way, ensure the federal government does not exceed its statutory license. Interpreting the phrase “a notice to ap-pear” to require a single notice—rather than 2 or 20 docu- ments—does just that.

*

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms en- sure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

The judgment of the Court of Appeals for the Sixth Cir- cuit is

Reversed.

And, here’s some “immediate commentary” by Round Table spokesperson “Sir Jeffrey” Chase:

Victory! This was the case in which our Round Table amicus brief was specifically referenced in oral argument.

Congrats to all involves, and Due Process Forever!

PWS

04-29-21

THE GIBSON REPORT 04-19-21 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group

Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on Mon. 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.

USCIS Office Closings and Visitor Policy

TOP NEWS

Biden Reverses Course Again After Backlash and Will Increase Refugee Limit

NYT: After a backlash from Democrats and human rights activists, the White House abruptly reversed course on Friday on the number of refugees it will allow into the United States, a reflection of President Biden’s continuing struggle with immigration policy.

Border fiasco spurs a blame game inside Biden world

Politico: Top White House officials have grown increasingly frustrated with Health Secretary Xavier Becerra over his department’s sluggish effort to house thousands of unaccompanied minors, as the administration grapples with a record number of children crossing the southern border.

ICE, CBP to stop using ‘illegal alien’ and ‘assimilation’ under new Biden administration order

WaPo: The change is detailed in memos sent Monday to department heads at Immigration and Customs Enforcement and Customs and Border Protection, the nation’s chief enforcers of federal immigration laws, according to copies obtained by The Washington Post. It is part of an ongoing effort to reverse President Donald Trump’s hard-line policies and advance Biden’s efforts to build a more “humane” immigration system.

Pressure mounts on DHS to stop using Clearview AI facial recognition

Hill: The groups are concerned that immigration authorities could be abusing the facial recognition technology to locate, arrest and even deport individuals using data that they did not consent to share.

Biden To Make Historic Census Director Pick With Latinx Statistician Rob Santos

NPR: If confirmed by the Senate, Santos, who is Latinx, would be the first permanent director of color for the federal government’s largest statistical agency, which is in charge of major surveys and the once-a-decade head count used for distributing political representation and funding around the United States.

Here’s What the Top Mayoral Candidates Say They’ll Do for Immigrant New Yorkers

Documented: Documented and City & State dug through the Democratic mayoral candidates’ plans for the City’s immigrant residents.

COVID-19 is Driving Homelessness for Undocumented Immigrants in New York

Documented: Interviews with local advocates and city data indicate that homelessness is rising locally and citywide, as the most marginalized residents struggle to recover from the pandemic.

LITIGATION/CASELAW/RULES/MEMOS

U.S. Supreme Court doubts ‘green cards’ for some protected migrants

Reuters: U.S. Supreme Court justices on Monday appeared reluctant to let people who have been allowed to stay in the United States on humanitarian grounds apply to become permanent residents if they entered the country illegally.

Appeals court upholds Canada-U.S. asylum-seeker agreement

Reuters: A Canadian appeals court on Thursday upheld a Canada-U.S. agreement to turn back asylum seekers, overturning a lower court ruling, siding with the federal government and setting up a possible Supreme Court showdown.

BIA Reopens and Terminates Sua Sponte in Light of Mellouli

Unpublished BIA decision reopens and terminates proceedings sua sponte upon finding selling a precursor substance (pseudoephedrine) under Okla. Stat. 2-328 is not a controlled substance offense under Mellouli v. Lynch. Special thanks to IRAC. (Matter of Nguyen, 7/9/20) AILA Doc. No. 21041400

BIA Finds New York Statute Not a Firearms Offense

Unpublished BIA decision holds that criminal possession of a weapon in the second degree under N.Y.P.L. 265.03(3) is not a firearms offense because it applies to loaded antique firearms. Special thanks to IRAC. (Matter of Disla, 6/26/20) AILA Doc. No. 21041200

BIA Finds Plea Vacated Due to Misunderstanding of Immigration Consequences Not a Conviction

Unpublished BIA decision holds that a defendant’s failure to understand the immigration consequences of a guilty plea is a substantive and/or procedural defect that vitiates a conviction for immigration purposes. Special thanks to IRAC. (Matter of Jaimes, 7/24/20) AILA Doc. No. 21041900

BIA Grants Interlocutory Appeal Challenging Denial of Unopposed Motion to Change Venue

Unpublished BIA decision grants interlocutory appeal and remands for further consideration of unopposed motion to change venue from Atlanta to Seattle. Special thanks to IRAC. (Matter of Miranda-Rodriguez, 7/28/20) AILA Doc. No. 21041901

BIA Holds Witness Intimidation in Massachusetts Is Not a CIMT

Unpublished BIA decision holds intimidation of a witness under Mass. Gen. Laws ch. 268, §13B is not a CIMT because it can be committed recklessly. Special thanks to IRAC. (Matter of Mendoza-Lopez, 7/22/20) AILA Doc. No. 21041602

BIA Grants Cancellation Hearing Where Qualifying Relative Aged Out

Unpublished BIA decision finds respondent is entitled to hearing on non-LPR cancellation despite lack of qualifying relative because IJ unduly delayed adjudicating application until respondent’s U.S. citizen child was over 21. Special thanks to IRAC. (Matter of Martinez-Perez, 7/22/20) AILA Doc. No. 21041601

BIA Orders Further Consideration of Continuance Pending U Visa Adjudication

Unpublished BIA decision orders further consideration of request for continuance pending adjudication of U visa petition where IJ failed to adequately consider factors under Matter of Sanchez Sosa. Special thanks to IRAC. (Matter of Delgado-Sarmiento, 7/21/20) AILA Doc. No. 21041600

BIA Says IJs May Rely on Material Misrepresentation Before USCIS in Assessing Inadmissibility Under INA §212(A)(6)(C)(i) for Purposes of Adjustment of Status

The BIA ruled that an IJ may rely on material misrepresentation during an interview before USCIS to remove the conditional basis of permanent residence in assessing inadmissibility under INA §212(A)(6)(C)(i) for purposes of adjustment of status. Matter of Mensah, 28 I&N Dec. 288 (BIA 2021) AILA Doc. No. 21041434

BIA Rescinds In Absentia Order Following Prompt Filing of Motion to Reopen

Unpublished BIA decision rescinds in absentia order where respondent filed motion within 15 days and submitted affidavit disavowing receipt of hearing notice. Special thanks to IRAC. (Matter of Suilma-Andrade, 7/9/20) AILA Doc. No. 21041402

BIA Finds Possession of Methamphetamine in Colorado Is Not a Controlled Substance Offense

Unpublished BIA decision holds unlawful possession of a controlled substance (methamphetamine) under Colo. Rev. Stat. 18-18-403.5 not a controlled substance offense under reasoning of Arellano v. Barr, 784 F. App’x 609 (10th Cir. 2019). Special thanks to IRAC. (Matter of Holod, 7/9/20) AILA Doc. No. 21041401

BIA Finds Respondent Who Arrived 20 Minutes Late Did Not Fail to Appear

Unpublished BIA decision holds that the respondent did not fail to appear for his hearing where he arrived 20 minutes late and the IJ was still on the bench. Special thanks to IRAC. (Matter of Flores-Lopez, 7/2/20) AILA Doc. No. 21041201

4th Circ. Gives Former Gang Members A Shot At Protection

Law360: A split Fourth Circuit panel overturned part of the Board of Immigration Appeals’ precedential holding that former gang members may not be protected as a group from deportation, finding that the board inappropriately conflated criteria for relief under federal immigration law.

CA9 Denies Petitioner’s Motion for Attorneys’ Fees After Finding Government’s Position Was Substantially Justified

In a published order, the court denied a motion for attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA), concluding that the government’s position was substantially justified and thus that the petitioner was not entitled to attorneys’ fees. (Meza-Vazquez v. Garland, 4/1/21) AILA Doc. No. 21041230

CA9 Holds That a Conviction for First-Degree Burglary of a Dwelling in Oregon Is a CIMT

The court held that the BIA permissibly found that first-degree burglary of a dwelling under Oregon Revised Statutes §164.225 is a crime involving moral turpitude (CIMT), and thus that petitioner’s conviction made him ineligible for cancellation of removal. (Diaz-Flores v. Garland, 4/6/21) AILA Doc. No. 21041234

CA9 Reverses BIA’s Denial of Asylum to Petitioner Who Was Targeted on Account of Her Feminist Political Opinion

Granting the petition for review of the BIA’s decision reversing an IJ’s grant of asylum, the court held that evidence compelled the conclusion that petitioner had established a nexus between her mistreatment in Mexico and her feminist political opinion. (Rodriguez Tornes v. Garland, 4/5/21) AILA Doc. No. 21041233

CA10 Finds That Mother and Son Targeted by MS-13 Gang Were Not Persecuted on Account of Membership in Son’s Immediate Family

Denying the petition for review, the court held that the BIA properly found that petitioners, a mother and her son, were not persecuted “on account of” their alleged membership in a particular social group (PSG) consisting of the son’s immediate family. (Orellana-Recinos v. Garland, 4/5/21) AILA Doc. No. 21041235

CA11 Holds That Florida Felon-in-Possession Conviction Is Categorically an Aggravated Felony

The court held that a Florida conviction for being a felon in possession of a firearm is categorically an aggravated felony under INA §101(a)(43)(E)(ii), and thus found the petitioner to be removable based on his conviction under the Florida statute. (Aspilaire v. Att’y Gen., 4/6/21) AILA Doc. No. 21041237

CA11 Finds That BIA Erred in Treating Petitioner’s Denaturalization as Retroactive for Removal Purposes

Granting the petition for review and remanding, the court held that the BIA erred in finding that the petitioner, a denaturalized noncitizen, was removable as an aggravated felon based on convictions entered while he was an American citizen. (Hylton v. Att’y Gen., 3/31/21) AILA Doc. No. 21041236

CA11 Says BIA Failed to Provide Reasoned Consideration of Petitioner’s Evidence of His Fear of Future Persecution in Cuba

The court held that the IJ and the BIA failed to provide reasoned consideration of the petitioner’s evidence of his well-founded fear of future persecution based on a pattern or practice of persecution toward dissident journalists in Cuba. (Martinez v. Att’y Gen., 4/7/21) AILA Doc. No. 21041238

Oral Arguments Set for Case on Policy Silencing IJs

Knight: Status: Oral argument scheduled for May 4, 2021 at 2pm. On July 1, 2020, the Knight Institute filed a lawsuit challenging a policy of the Executive Office for Immigration Review that imposes an unconstitutional prior restraint on the speech of immigration judges.

Emergency Presidential Determination on Refugee Admissions for FY2021

President Biden issued a determination revising the allocations for refugee admissions for FY2021 and maintaining the refugee admissions ceiling at 15,000. The memo notes that a subsequent determination may be issued to increase admissions if the ceiling is reached before the end of the fiscal year. AILA Doc. No. 21041633

USCIS Issues Open Letter on the Rescission of the 2019 Public Charge Rule

USCIS sent a letter to interagency partners stating that the 2019 Public Charge final rule is no longer in effect, and that DHS intends to partner with federal agencies, state and local governments, and nongovernmental stakeholders to ensure applicants and the public are aware of this change. AILA Doc. No. 21041632

DOS Provides FAQs on the Immigrant Visa Backlog

On Facebook, DOS provided FAQs on the immigrant visa backlog, including on what DOS is doing to reduce the backlog, reapplication procedures for individuals who were refused an immigrant visa due to Presidential Proclamations 9645 and 9983, K visas, diversity visas, employment visas, and more. AILA Doc. No. 20071435

Sen. Booker Revives Bill To Overhaul Immigration Detention

Law360: U.S. Sen. Cory Booker, D-N.J., reintroduced legislation on Thursday that would abolish contracts with private immigration detention centers and aim to improve conditions at facilities operated or overseen by the U.S. Department of Homeland Security.

I-765 Online Submission Pilot Program for Limited Categories

USCIS: Filing ONLY under one of these categories:

(c)(3)(A) – Pre-completion OPT;

(c)(3)(B) – Post-completion OPT; and

(c)(3)(C) – 24-month extension for science, technology, engineering and mathematics (STEM) students

ACTIONS

USCIS Updates Policy Guidance on Special Immigrant Juvenile Classification: Comments Due April 19.

Comment on Security Bars and Processing (Again): Comments on amending or rescinding the Security Bars Rule must be submitted on or before April 21, 2021.

USCIS Request for Public Input on Reducing Administrative Barriers: Comments are due May 19, 2021.

March to Victory: Relay Across America

RESOURCES

AILA: Tax Season Basics for 2021

AILA: Practice Pointer: Utilizing a Reentry Permit to Avoid Admissions Issues for LPRs Impacted by COVID-19, and Other Considerations

AILA: Think Immigration: One to Two Percent of People Are Autistic – How That Affects Your Practice

AILA: Practice Alert: USCIS Begins Sending Invites to Certain Applicants to Resubmit I-485 Applications That Were Previously Rejected

AILA: Client Flyer: Travel Issues for Permanent Residents in Pandemic Times

AILA: Examining the Government’s Witness in Removal Proceedings

ASISTA: Notes from Listening Session with USCIS

CMS: DACA and the Supreme Court: How We Got to This Point, a Statistical Profile of Who Is Affected, and What the Future May Hold for DACA Beneficiaries

CRS: Deferred Action for Childhood Arrivals (DACA): By the Numbers

CRS: The Law of Asylum Procedure at the Border: Statutes and Agency Implementation

CRS: Temporary Protected Status and Deferred Enforced Departure

CRS: Citizenship and Immigration Statuses of the U.S. Foreign-Born Population

GAO: Border Security: Assessment of the Department of Homeland Security’s Border Security Improvement Plan

ILRC: Pereida v. Wilkinson and California Offenses

ILRC: Determining Deferred Action for Childhood Arrivals (DACA) Eligibility

Immi self-screening updated to include new TPS countries and initial DACA

IRAP: Access to Documents by Eritrean Refugees

JRS: Seeking Protection in a Pandemic: COVID-19 and the Future of Asylum

USCIS: U Visa Approval and Denial Ratios, FY16-FY20 (PDF, 159.55 KB)

EVENTS

4/20/21 Motions to Reopen in Immigration Court: Part II – U and T MTR

4/20/21 Hot Topics in Naturalization Adjudications

4/20/21 The US-Mexico Border in Context

4/21/21 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2021

4/22/21 Dissecting a BIA Decision for a Successful Circuit Court Appeal

4/22/21 Missing Ingredients in Diaspora Engagement in Development: Destination-Country Policies and Integration

4/22/21 Mendez Rojas and the One Year Asylum Bar: How the Settlement Agreement May Help Your Clients

4/22/21 Things I Wish I Knew Earlier: Best Practices for Immigration Policy Advocacy

4/23/21 Video Roundtable: Employment Authorization Updates for Asylum Seekers

4/27/21 The Relationship Between Immigration and Journalism

4/28/21 Community Defense: Legal Service Partnerships with Organizers

4/30/21 Dismantling MPP Moving Forward: Lessons Learned From Working With Detained People and Formerly Separated Families

5/4/21 Public Charge: Current State of Play

5/5/21 100 Days: Accountability on Immigration

5/5/21-5/6/21 U Visas: Advanced & Emerging Issues

5/6/21 IDP: The Ethics of Representing Clients with Criminal Contacts

5/6/21 Hot Topics in Asylum Law

5/10/21 All About DOJ Recognition and Accreditation

5/12/21 NYIC: Legal Research and Writing Training Series

5/12/21 New Virtual Workshop Models

5/13/21 Marijuana and Immigrants

5/17/21-5/20/21 CLINIC Convening 2021

5/18/21 DOJ Recognition & Accreditation

5/18/21 Ethics in Representing Family Members in U Visa, U AOS/929, and VAWA Cases

5/20/21 Understanding your Client’s Contact with the Criminal Legal System in New York City

5/26/21 Hot Topics in Removal Defense

6/1/21 VAWA Adjustment of Status Fundamentals

6/2/21-6/23/21 CLINIC Webinar Series: Overview of Immigration Consequences of Crimes

6/8/21-6/29/21 CLINIC Webinar Series: Citizenship and Naturalization

6/9/21 Hot topics: Adjudication and Enforcement Trends

6/10/21 Public Charge and Hot Topics in Consular Processing

6/14/21 Taxes at the Border: Understanding the Tax Consequences of Immigration Status

6/15/21 U Visa Hot Topics

6/15/21 Motions to Reopen in Immigration Court: Part III – VAWA Self-petitioners

6/22/21 Defending Immigration Removal Proceedings 2021

6/30/21 Immigration Update – June 2021

7/22/21 PLI: Defending Immigration Removal Proceedings 2021

9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, April 19, 2021

From the Bookshelves: The End of Asylum by By Andrew I. Schoenholtz, Jaya Ramji-Nogales, and Philip G. Schrag

Peter Margulies: Biden’s Border Problem, and How to Fix It

More inclusive language for immigrants at ICE, CBP

America First Caucus Scrapped

Senator Booker Revives Bill To Overhaul Immigration Detention

Immigration Article of the Day: Expanding the Geographies of ‘Sanctuary’ and the Deepening and Contentious Nature of Immigration Federalism: The Case of California’s SB 54 by William Arroacha

Sunday, April 18, 2021

From The Bookshelves: The Crate Escape by Brian Robson

Immigration Article of the Day: Health Inequity and Tent Court Injustice by Craig Mousin

Saturday, April 17, 2021

Call For Papers: AILA Law Journal, Fall 2021 Edition

Former President George W. Bush Advocates for Immigration Reform

Biden Administration Wavers on Refugee Admissions: Will It Cave on Immigration or Push for Change?

Immigration Article of the Day: The Political Misrepresentation of Immigrants in the Census by Ming Hsu Chen

Friday, April 16, 2021

UCLA Immigration Law and Policy Conference

Supreme Court to Hear Arguments in TPS/Adjustment of Status Case

AILA Calls for Article I Immigration Courts, Immigration Reform

Immigration Article of the Day: Unsettling the Border by Sherally Munshi

Thursday, April 15, 2021

From the Bookshelves: The Ungrateful Refugee by Dina Nayeri

NAIJ challenge to gag orders

Vera Report Release on Universal Representation

Revisiting Immigration in the United States: reflection on the NAS Report

Thursday, April 15, 2021

Throwback Thursday: U.S. Immigration Officers of Mexican Ancestry as Mexican Americans, Citizens, and Immigration Police by Josiah Heyman

Texas sues Biden administration to reinstate Trump-era ‘remain in Mexico’ immigration policy

Wednesday, April 14, 2021

John Oliver to Biden on Refguees: “Pick up a f–ing pen, and do the right thing”

Biden names leading statistician who specializes in undocumented immigrantion as next Census Director

Democrats send letter to Biden requesting immigration bill in second part of infrastructure package

Tuesday, April 13, 2021

April 16: Sharing Responsibility for Refugees

Carolyn Patty Blum: How Kamala Harris can find the solution for the migration crisis

Immigration Article of the Day: Pleading the Fifth in Immigration Court: A Regulatory Proposal by Tania N. Valdez

Raquel Aldana: “Citizenism” and the Shackles of Borders

Restoring Asylum: The Challenges of “Building Back Better” at the Border

Monday, April 12, 2021

Biden immigration nominees: CBP and USCIS

Job Announcement: U. of Oklahoma Chair in Civil Rights, Race & Justice

Immigration Article of the Day: Reagan’s Cold War on Immigrants: Resistance and the Rise of a Detention Regime, 1981–1985 by Kristina Shull

Call For Papers–AALS 2022, New Voices in Immigration Law

Biden Budget Immigration Priorities Differ from Trump’s

Immigration and family separation policies at the US border inspire comic book ‘Home’

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

Thanks, Elizabeth.

Note the unusual number of favorable BIA decisions in the “Litigation” section. Too bad they are all unpublished.

PWS

04-21-21

🤮BIDEN/GARLAND APPEAR HEADED FOR “VICTORY” @ SUPREMES OVER LONG-TIME RESIDENTS SEEKING GREEN CARDS — Progressives, Immigration Advocates, Dems Rebuffed As Biden Administration Goes “Full Stephen Miller” On Couple With Two Decades’ Residence, USC Child! — Only Justice Sotomayor Speaks Up For “Better” Interpretation Of Statute, Immigrants Rights, Common Sense In The Law!

https://www.reuters.com/world/americas/us-supreme-court-doubts-green-cards-some-protected-migrants-2021-04-19/

Andrew Chung reports for Reuters:

U.S. Supreme Court justices on Monday appeared reluctant to let people who have been allowed to stay in the United States on humanitarian grounds apply to become permanent residents if they entered the country illegally.

The justices heard arguments in an appeal by a married couple from El Salvador who were granted so-called Temporary Protected Status of a lower court ruling that barred their applications for permanent residency, also known as a green card, because of their unlawful entry.

The case could affect thousands of immigrants, many of whom have lived in the United States for years. President Joe Biden’s administration opposes the immigrants in the case. The dispute puts Biden, who has sought to reverse many of his Republican predecessor Donald Trump’s hardline immigration policies, at odds with immigration advocacy groups and some of his fellow Democrats. read more

A federal law called the Immigration and Nationality Act generally requires that people seeking to become permanent residents have been “inspected and admitted” into the United States. At issue in the case is whether a grant of Temporary Protected Status, which gives the recipient “lawful status,” satisfies those requirements.

. . . .

Liberal Justice Sonia Sotomayor told Justice Department lawyer Michael Huston, “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”

. . . .

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

Read the full article at the link.

Garland helps Biden deliver “tough noogies, go pound sand, your lives don’t matter” message to immigrants like Jose and Sonia and their supporters who might have had the illusion that better times were on the horizon with Biden’s election! Progressives find that when push comes to shove, Biden & Garland can be just as cruel, dumb, and counterproductive as Trump & Miller!

Any hope that advocates might have had of help, sympathy, or understanding for their green-card-qualified clients with decades of residence and citizen family members goes down the tubes early in Dem Administration. Biden-Harris humane rhetoric and promises prove just another illusion for progressives in Administration’s first High Court test!

But for Justice Sotomayor, the thinness of the Justices’ understanding of both immigration law and the human issues involved was alarming, yet basically predictable. What do a bunch of highly privileged, above the fray, judges who have never personally dealt with the stupidity, arbitrariness, and trauma of our immigration system, and never represented clients in Immigration Court, care about shutting hard working American residents, people of color, like Jose and Sonia, out of our system and disenfranchising them for no particular reason. The worst, most racially discriminatory “interpretations” are “available” to those judges, so why not use them? For them, it’s a wooden academic exercise played out with human lives that don’t matter because they are “the other.” Except for Sotomayor, going for the best, most practical, humane interpretation evidently never crossed the minds of these Justices.

As Justice Sotomayor correctly said: “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”

It’s not rocket science. Just common sense, humanity, and a clear understanding of the effect of legal interpretations on human lives. At the Supreme Court level, most decisions represent a “choice” rather than a “mandate.” That’s where having Justices who neither care to understand nor have to live with the consequences of their decisions really hurts people of color, immigrants, asylum seekers, and others not in the “power structure!” Better judges for a better America!

Meanwhile, advocates and progressives should never underestimate the ability of Dem Administrations to screw up immigration policy.

🇺🇸🗽⚖️Due Process Forever!

PWS

04-20-21

⚖️🗽I SPEAK OUT ON BIDEN ADMINISTRATION’S STUPID POSITION BEFORE THE SUPREMES IN SANCHEZ V. MAYORKAS! — John Fritze reports for USA Today

https://www.usatoday.com/story/news/politics/2021/04/16/supreme-court-debate-tps-immigration-case-biden-confronts-border/7110295002/

WASHINGTON – Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.

But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally.

The Salvadorans sued in 2015 and the Supreme Court will hear their appeal Monday in a case that has drawn little attention in Washington even as it has raised significant questions about the Biden administration’s approach to immigration – not to mention the status of hundreds of thousands of immigrants living in a state of limbo.

. . . .

“Look, this is a no brainer,” said Paul Wickham Schmidt, a Georgetown University law professor and former immigration judge. “Why waste time on it? The administration has indicated they’d like to regularize many [TPS beneficiaries] and…instead they’re defending a gimmick cooked up by Stephen Miller,” Trump’s onetime policy adviser.

. . . .

“Integrate them into our society rather than leaving them in permanent limbo – in theory, that’s what the Biden administration says it wants to do,” said Schmidt, the former immigration judge. “Only here’s their first chance to make it happen and they don’t connect the dots.”

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

Read John’s complete article at the above link.

Yeah, I know this brain-dead position originated in the Obama Administration. I’d never accuse the Obama Administration of overall having a wise, informed, or consistent approach to immigration. But, the “precedents” at issue here were issued under Trump. See Matter of H-G-G-, 27 I. & N. Dec. 617 (AAO 2019); Matter of Padilla Rodriguez, 28 I. & N. Dec. 164 (BIA 2020).

Any time you see folks like Ira Mehlman @ FAIR or Christopher Hajec @ Immigration Reform Law Institute endorsing a position you can bet that there is a link to the cruel, White Nationalist policies of Stephen Miller and his cronies in the Trump Administration. If you had any doubt that the position being taken by the Garland DOJ was stupid policy, Mehlman’s and Hajec’s endorsements, and the organizations they represent, should resolve them.

Ignoring your potential friends and supporters; embracing the “racist right.” Interesting way to get started on what was promised to be a “smarter, kinder, more humane” approach to immigration policy. Can anyone really tell me what Judge Garland is doing over @ DOJ? The once highly regarded jurist who testified before Congress and was only a Mitch McConnell away from a seat on the Supremes seems to have all but disappeared into a bureaucratic fog of incompetence, bad lawyering, and missed opportunities @ the DOJ!

Look, after four years of senselessly, wastefully, and disgracefully trying to dump on long-time, contributing members of our society in TPS, like Jose & Sonia, the Trump Administration (thankfully for America) never removed any of them. The idea that the Biden Administration will do so is absurd.

So these folks are here for the duration. With Congress in deadlock, the most practical, legal, readily available way of getting tens of thousands of hard-working residents like Jose and Sonia fully integrated into our society and on their way to citizenship is simply by following the clear statutory language as other Circuit Courts have done. These are individuals who actually have met all the criteria of our legal immigration system! Most now have families with U.S. citizens. Why on earth would we want to keep those we should welcome in limbo? It’s cruel, counterproductive, and stupid!

For a much more scholarly and nuanced approach to DOJ’s wrong-headed handling of this case, check out this article in Just Security by my friend, renowned immigration expert, former senior executive in the Clinton and Obama Administrations (we actually met while working on the Refugee Act of 1980 in the Carter Administration — back when we were young), emeritus Professor David A. Martin:

https://immigrationcourtside.com/2021/03/14/%E2%9A%96%EF%B8%8F%F0%9F%97%BDprofessor-david-a-martin-explains-how-biden-administration-could-advance-its-immigration-agenda-by-abandoning-their-wrong-headed-position-before-the-supremes/

I also note with pleasure that counsel of record for Jose and Sonia is Jamie W. Aparisi, who appeared before many times at the Arlington Immigration Court.

All this being said, the Supremes still might preserve this couple’s future and save the Garland DOJ from themselves. In past cases, faced with clear statutory language, the Supremes have required the Government to do something radically sensible: follow the law! See, e.g., Pereira v. Sessions, 138 S.Ct. 2105 (2018) (notice to appear).

So, who knows? Justice (not to be confused with the Department of “Justice”) as well as common sense and human decency could again prevail!

🇺🇸⚖️🗽Due Process Forever!

PWS

04-16-21

Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published

Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”

🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!

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Here’s a copy of Judge Freeman’s decision, basically a “primer” on Matthews v. Eldridge due process and its blatant violation under immigration bureaucracies of Administrations of both parties.

🇺🇸⚖️🗽Due Process Forever!

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Dan Kowalski reports from LexisNexis Immigration Community:

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EOIR continues to apply “old time methods” to those poor souls stuck at the “retail level” of American “justice,” as “Team Garland” ignores the screams for help!

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