Tag: Supreme Court

🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!

 

Jason Dzubow
Jason Dzubow
The Asylumist

https://www.asylumist.com/2021/12/01/cancel

-culture-in-immigration-court/

Cancel Culture in Immigration Court

December 1, 2021

For “respondents” (non-citizens in removal proceedings) and their lawyers, Individual Hearings in Immigration Court are a big deal. Evidence must be gathered. Affidavits have to be prepared, checked, and re-checked. Witnesses must be identified, convinced to attend the hearing, and prepared for trial. Respondents practice their testimony. In most cases, the noncitizen has been waiting for many months or years for the trial date. The result of the trial determines whether the applicant can remain in the United States or must leave. When a respondent receives asylum, he is permitted to stay in the U.S. If he loses, he may be deported to a country where he faces danger. In many cases, respondents have family members here or overseas who are counting on them, and the outcome of the case affects the family members as well as the respondent. All of this provokes anxiety and anticipation. In short, Individual Hearings are life-changing events that profoundly effect respondents and their families.

So what happens when the Individual Hearing is canceled?

pastedGraphic.png

“Sorry boys and girls, the ‘nice’ list is too long. We’ll reschedule Christmas for next year… or maybe the year after that.”

The first thing to know is that cancellations are common. Cases are canceled weeks, days or even minutes before the scheduled time. Indeed, we often cannot be sure that a case will actually go forward until the hearing begins.

Why does this happen?

There are many reasons, some more legitimate than others. The most common reason these days is the pandemic. Sometimes, courts close due to potential exposures. That is understandable, but as far as I can tell, these represent a small minority of Covid cancellations. I have had 50% or more of my Individual Hearings canceled over the last year and a half, and none of those was caused by a Covid exposure. I suspect that the large majority of these cancellations are due to reduced capacity to hear cases–since judges and staff are often working from home. Indeed, most pandemic cancellations seem to occur a week or two before the Individual Hearing. By that time, we’ve already completed and submitted the evidence, witness list, and legal brief, and have usually started prepping the client for trial. The client is also psychologically gearing up for the big event.

And then we check the online system and find that the case is off the docket.

What’s so frustrating about these cancellations is that we’ve been living with the pandemic since early 2020. The Immigration Courts should have adjusted by now. If cases need to be canceled, why not do that several months in advance? At least that way, applicants would not build up hope, only to have that dashed when the case is cancelled at the last minute. Also, it wastes attorney time–since we will have to submit updated country condition evidence (and perhaps other evidence) later, re-prep witnesses, and potentially prepare new legal briefs, if the law changes (which is more common than you’d like to think). For attorneys who charge hourly, this additional work will involve additional costs to the applicants. So all around, last minute cancellations are harmful, and it’s hard to understand why they are still so frequent.

pastedGraphic_1.png

“I’m double booked today, so let’s put off your heart surgery until 2023.”

Besides the pandemic, court cases are cancelled for a host of other reasons: Immigration Judges (“IJs”) are out sick, hearings get bumped to accommodate “priority” cases or sometimes cases are “double booked,” meaning that they are scheduled for the same time slot with the same IJ, and so only one can go forward. To me, all these are weak excuses for canceling individual hearings. Most courts have several judges, and so if one judge is out sick, or if a priority case must be scheduled at the last minute, another judge should be able to help out (in all but the most complicated cases, judges need little time to prepare for a hearing, and so should be able to adjudicate a case on short notice). Also, there is no excuse for double-booking cases. IJs should have a sense of their schedules and simply not overbook. In addition, all courts are overseen by Assistant Chief Immigration Judges (“ACIJs”), who should be available to hear cases if need be. Finally, given the ubiquity of video conferencing equipment and electronic records, judges can adjudicate cases remotely, and so there should almost always be a judge available to fill in where needed.

Of course, there are times when case cancellations are unavoidable, due to inclement weather, for example. But in an ideal world, these should be rare.

pastedGraphic_2.png

“Oy vey! I have to give priority to a better-looking couple. Let’s reschedule this wedding for later. Are you free in 2024?”

If the delay caused by case cancellations was measured in weeks or even months, the problem would not be so severe. But in many cases, hearings are postponed for one or two years–or even longer! This is obviously distressing for the applicant, as the long-anticipated end date is pushed back to who-knows-when. It is particularly devastating for applicants who are separated from family members. The long postponements are also a problem for the case itself, as evidence becomes stale and must be replaced with more up-to-date information, and laws change, which can require a new legal brief. In short, these delays often force the applicant (and the applicant’s lawyer) to do significant extra work on the case, and this can add additional costs in terms of legal fees.

It seems obvious to me that courts do not fully appreciate the damage caused by last minute cancellations. If judges and staff (and management) knew more about the harm these cancellations cause, perhaps they would make a greater effort to ensure that hearings go forward, and that any delayed hearings are rescheduled as quickly as possible.

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

Readers of “Courtside” are familiar with the “toxic culture” of EOIR — actively encouraged by some Attorneys General, enabled and abetted by others.

The real problem here is that Immigration Courts are “led” by “managers” beholden to political agendas rather than the public they should serve. Also, since far too many EOIR “managers” and Immigration Judges have never represented individuals in Immigration Court, they are basically clueless as to the human and practical effects of their actions on individuals as well as on the dedicated, often pro bono or “low bono” lawyers who must guide their desperate and often re-traumatized clients through this morass.

At a time when the need for pro bono assistance has never been greater, the disgraceful dysfunction,  mismanagement, and “studied user unfriendliness” of EOIR under Garland is actually discouraging attorneys from donating their time and endangering their emotional well-being! Could there be any worse public policy?

With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites. 

This “leading disintegrator of American justice and cosmic threat to our entire democracy” is largely “shoved under the carpet” by “mainstream media,” leaders of the legal profession (outside of immigration/human rights), politicians, policy makers, and the general public. Will they only “wake up” when it is too late and their own rights and futures have been diminished, dehumanized, and de-personified as if they were “mere migrants, not humans?”

In other words, who in America will always be immune from the “Dred Scottification of the other” now practiced, tolerated, and often even encouraged at the highest levels of our government? Don’t think it couldn’t happen to you! If immigrants, asylum seekers, and migrants in the U.S. are not “persons” under the Fifth Amendment, what makes YOU think that YOUR “personhood” will be honored by the powers that be! 

In defense of today’s IJs, they actually have remarkably little control over their own dockets which are incompetently “micromanaged” from on high or by non-judicial “administrators.” Sound like a formula for an incredible, largely self-created, 1.5 million case backlog?

Cutting to the chase, the Immigration Courts are controlled by the Attorney General, a political official and a chief prosecutor to boot. Beyond that, no Attorney General has actually had to experience practice before the totally dysfunctional and intentionally user unfriendly “courts” he or she runs. 

Foreign Service Officers must initially serve as consuls — the basic operating level of an embassy. Hotel managers usually start by working the front desk, where the “rubber meets the road” in the industry.

But, we enthrone those who are supposed to be the best, wisest, and fairest in the legal profession as Attorneys General and Article III Judges without requiring that they have had experience representing individuals at the “retail level” of our legal system — the U.S. Immigration Courts.

It doesn’t make sense! But, what does figure is that a system run by those without expertise and relevant experience, haphazardly “supervised” by Article III Judges who almost invariably exhibit the same blind spots, indifference to injustice, and lack of practical knowledge and expertise as those they are “judicially reviewing”  has devolved into the worst court system in America. It’s an oppressive catastrophe where “liberty and justice are not for all” and survival is often more about the mood, mindset, or personal philosophy of the judge, or the “whim of the day” of DOJ politicos, than it is about the facts of the case or the most fair and reasonable applications of the law by experts! Is this really the way we should be determining who lives and who dies, who thrives and who will struggle just to survive?

These “courts” are not fair and impartial courts at all. They are places where service to the public comes last, poor leadership and mismanagement are tolerated and even rewarded, backlogs are out of control, due process, fundamental fairness, scholarship, and best practices scorned, and precious lives and human dignity routinely are ground to dust and scattered to the wind.

We deserve better from our legal system!

Once, there was a court system with a dream of a better future for all in America — a noble, if ambitious, vision, if you will: “through teamwork and innovation, become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”😎

Now, sadly, that enlightened vision has disintegrated into a nightmare of dedicated dockets, biased precedents, endless backlogs, sloppy work, due process denying gimmicks, bogus statistics, mediocre judicial selections, secrecy, customer unfriendliness, dishonest blame shifting, and ridiculous Aimless Docket Reshuffling.  ☠️

Amateur Night
Attorney General Merrick Garland’s “limited vision” for EOIR is a continuing nightmare for those sentenced to appear and practice before his stunningly dysfunctional and “highly user unfriendly” Immigration “Courts.” Isn’t it high time to insist that those given responsibility for stewardship over America’s largest — and probably most consequential — Federal “Court” system actually have represented humans before those “courts?”
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Where there once was the promise of “light at the end of the tunnel,” now there is only “Darkness on The Edge of Town:”

Well lives on the line where dreams are found and lost
I’ll be there on time and I’ll pay the cost
For wanting things that can only be found
In the darkness on the edge of town
In the darkness on the edge of town

—- Bruce Springsteen

 😎Due Process Forever!

PWS

12-15-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  3. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  4. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!

☹️OFTEN INDIFFERENT OR OVERTLY HOSTILE TO THE CONSTITUTIONAL & HUMAN RIGHTS OF MIGRANTS & WOMEN, SUPREMES’ MAJORITY MIGHT GREEN-LIGHT “OPEN SEASON ON HUMANITY” FOR CBP AGENTS!☠️

Lydia Wheeler
Lydia Wheeler
Journalist, Opening Argument
Bloomberg Law
PHOTO:Twitter

Lydia Wheeler writes for Bloomberg Law’s Opening Argument:

https://openingargument.substack.com/p/kings-and-queens-of-border-puzzle

‘Kings and Queens’ of Border Puzzle Courts Divided on Liability

pastedGraphic.png Lydia Wheeler

Welcome back to Opening Argument, a column where I dig into complicated legal fights, unpack issues dividing appeals courts, and discuss disputes ripe for Supreme Court review. On tap today: a look at when border patrol agents can be sued for violating someone’s constitutional rights.

Border patrol agents allegedly took Anas Elhady’s coat and shoes, and held him in a near-freezing cell without a blanket after he legally crossed the border back into the U.S. from Canada. Robert Boule was allegedly shoved to the ground by a border patrol agent who came onto his property without a warrant to check the immigration status of a guest at the inn Boule owns in Washington.

Can they each sue the agents for damages? The answer right now depends on which court is hearing their case.

The Supreme Court is expected to provide more clarity in a case it’s hearing later this term. Depending on how the justices rule, it could further insulate border patrol agents from liability.

If there’s no way to hold individual agents accountable for their conduct at the border, “then custom agents are kings and queens unto themselves,” said Elhady’s attorney Gadeir Abbas, a senior litigation attorney at the Council on American-Islamic Relations.

A 1971 Supreme Court decision gave people the right to hold federal officials liable when their constitutional rights are violated, but courts have been trying to figure out if or when that applies to immigration officials. So far, they’re coming to different conclusions.

The U.S. Court of Appeals for the Sixth Circuit said Elhady, who claimed his detainment violated his Fifth Amendment right to due process, didn’t have a right to sue the agents involved. The Ninth Circuit said Boule did.

. . . .

But the Supreme Court specifically refused to consider whether Bivens should be overruled when it agreed to hear the agent’s appeal in the Boule case. The justices will instead decide if you can bring a suit under Bivens for a First Amendment retaliation claim and whether you can sue federal officers engaged in immigration-related functions for allegedly violating your Fourth Amendment rights. Oral arguments in the case haven’t yet been scheduled.

“I could imagine a Supreme Court, in an opinion by Justice Alito saying something like ‘Yes Bivens still is the law, but we find that in this case involving enforcement of the immigration laws, Bivens claims really don’t fit and don’t belong, and limit Bivens one step further and say immigration cases are different,” said Kevin Johnson, the dean of University of California Davis School of Law.

If the court does that, Johnson, who’s written extensively on immigration law and civil rights, said it would embolden border patrol agents to feel like they can act with a great deal of discretion that will never be questioned.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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

Read Lydia’s full report at the link.

Hard to argue with the analysis of Dean Kevin Johnson, the “most often cited” immigration scholar in America according to a recent survey. 

Kevin R. Johnson
Kevin R. Johnson
Dean
U.C. Davis Law, “Most Cited Immigration Practical Scholar”

The rampant abuses of legal and human rights by the CBP, systemic racial bias, and almost total lack of accountability have been well-documented by civil rights advocates.  See, e.g., https://www.southernborder.org/border_lens_abuse_of_power_and_its_consequences

Here’s a telling excerpt from the foregoing report issued by the SPLC in 2020:

The number of deaths resulting from an interaction with CBP officers are indicators of the horrific culture of abuse, corruption, and disregard for human life that plagues the nation’s largest federal law enforcement agency. Unfortunately, these killings are not the only examples of abuse of power and corruption within CBP.

Numerous studies — both internal and external — have shown that CBP is plagued with a culture of impunity, corruption, and abuse. Its systemic problems also run deep. The discovery of a secret Facebook group full of racist, misogynist and xenophobic posts by Border Patrol agents brought to light more evidence of the agency’s culture of abuse. In it, agents routinely made sexist jokes, made fun of migrant deaths, and shared other hateful content. A year later, little action was taken by CBP, again pointing to the lack of transparency and accountability for the agency. Countless other reports have linked CBP to cases of officer misconduct, corruption and a general lack of accountability for criminal conduct and abusive actions.

Doesn’t sound to me like an ideal candidate for freedom from individual constitutional tort liability! Indeed, the reasons for applying Bivens to immigration agents appear quite compelling. Hard to think of a law enforcement agency more in need of “strict scrutiny.”

But, with the current Court majority, who knows? Kevin’s “highly educated guess” is as good or better than anyone else’s. After all, the Supreme’s majority had little difficulty enabling constitutional and human rights abuses carried out by the Trump regime on asylum seekers and other vulnerable migrants — in other words, “Dred Scottification” of the “other!”

Valerie Bauman
Valerie Bauman
Investigative Reporter
Bloomberg
PHOTO: Twitter

Many thanks to Val Bauman over at Bloomberg for bringing this article to my attention. I’ve missed Val’s lively and incisive reporting on the “immigration beat” for her previous employer. Come on back to immigration, Val! We miss you!

🇺🇸Due Process Forever!

PWS

12-14-21

Related posts:

  1. AS MARK MORGAN AND OTHER REGIME HUMAN RIGHTS ABUSERS CELEBRATE THEIR “CRIMES AGAINST HUMANITY,” & THE SUPREMES, THE 9TH CIRCUIT,  & OTHER ARTICLE III COURTS CONTINUE THEIR IMMORAL COMPLICITY, NEW HUMAN RIGHTS WATCH REPORT DOCUMENTS HARM  TO CHILDREN FROM “LET ‘EM DIE IN MEXICO” CHARADE – “A United States government program exposes children, as well as their parents, seeking asylum to serious risk of assault, mistreatment, and trauma while waiting for their cases to be heard, Human Rights Watch said today in a joint investigation report.”
  2. EUGENE ROBINSON @ WASHPOST: KID KILLERS ON THE LOOSE: “Sixteen-year-old Carlos Gregorio Hernandez Vasquez died horribly and needlessly. The Trump administration’s policy of deliberate, punishing cruelty toward Latin American migrants killed him.”
  3. FRANK RICH @ NY MAGGIE: TRUMP TOADIES WILL FACE A RECKONING — “With time, the ultimate fates of those brutalized immigrant and refugee families will emerge in full. And Trump’s collaborators, our Vichy Republicans, will own all of it . . . .”
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

⚖️🗽CHAMPIONS OF JUSTICE, MAKING A DIFFERENCE: 🛡⚔️ Round Table’s Fight For Better Policies, Best Practices, Earns Acclaim!

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

From “Sir Jeffrey” Chase:

Our statement yesterday on MPP was referenced and quoted by CNN at the end of this article by Priscilla Alvarez and Geneva Sands on the MPP restart:

https://www.cnn.com/2021/12/06/politics/biden-remain-in-mexico/index.html

Priscilla Alvarez
CNN Digital Expansion 2019, Priscilla Alvarez
Politics Reporter, CNN
Geneva Sands
CNN Digital Expansion 2019, Geneva Sands

This morning, Democracy Now referenced our letter in a segment covering the issue, saying:

 A group of former immigration judges released a statement condemning the return of the program as the “antithesis of fairness.”  

Here is the link:

https://www.democracynow.org/2021/12/7/biden_trump_era_remain_in_mexico

Furthermore, in oral arguments before the Supreme Court yesterday in Patel v. Garland, our amicus brief received a brief mention:

  • JUSTICE KAVANAUGH: — questions, how 

  • 10  could an appellate court — and this question 

  • 11  cuts both ways, so — but how can an appellate 

  • 12  court look at a cold record and determine a 

  • 13  factual error when it relates to credibility, 

  • 14  for example, or something like that? Just give 

  • 15  me some examples where this will matter, I 

  • 16  guess. 

  • 17  MR. FLEMING: Well, there — as the 

  • 18  amici, the American Immigration Lawyers 

  • 19  Association and the EOIR judges, point out, it 

  • 20  — it’s not uncommon.Best, Jeff

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

And, here’s more coverage from Human Rights First:
Courtesy Paul Ratje — AFP via Getty Images

 

A man sits in a migrant camp near Reynosa, Tamaulipas, Mexico.
The new version of MPP expands its focus to asylum seekers from across the hemisphere, stranding even more people seeking safety in dangerous conditions at the border.

 

Kennji Kizuka, Associate Director for Research and Analysis, Refugee Protection, appeared on Democracy Now! and detailed the many human rights violations faced by asylum seekers processed under the “Remain in Mexico” policy.

 

“It’s extraordinarily concerning that the Biden administration is not only restarting this policy but expanding it,” said Kizuka.
Human Rights First also announced the resumption of our research documenting the human rights abuses suffered by people turned away to wait in danger under MPP.

 

Human Rights First’s Associate Attorney, Refugee Protection Julia Neusner and Advocacy Strategist for Refugee Protection Ana Ortega Villegas are on the ground in Ciudad Juárez to monitor the first days of MPP’s reinstatement.  Please follow their live updates and other reports through Human Rights First’s twitter account.

Our team’s view of the Mexican government’s

staging area in Cuidad Juárez for Remain in Mexico 2.0

 

Our position is gaining widespread support from those who understand the issue.  The Roundtable of Former Immigration Judges condemned

MPP as the “antithesis of fairness,” concluding that there has been “no greater affront to due process, fairness and transparency,” and called for administration to “permanently end the program.”

 

The union for U.S. Citizenship and Immigration Services (USCIS) asylum officers tasked with MPP screenings call it “irredeemably flawed.”  They said that restarting MPP “makes our members complicit in violations of U.S. federal law and binding international treaty obligations of non-refoulement that they have sworn to uphold.”

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

So proud to be a part of this group and so grateful for the leadership of colleagues like Judges Jeffrey Chase, Ilyce Shugall, Lory Rosenberg, Carol King, Joan Churchill, Denise Slavin, Sue Roy, John Gossart, Charles Honeyman, Charlie Pazar, Sarah Burr, Cecelia Espenoza, Bruce Einhorn, Tue Phan-Quang, Bob Weisel, Paul Grussendorf, Jennie Giambastini, and many, many, many others! 

As an “appreciative fellow NDPA member” told me yesterday, “it’s a true team effort!“ This type of teamwork for the public good was once encouraged at EOIR and even incorporated into the “leadership vision,” but now, sadly, it has “fallen by the wayside” in what has basically become a “haste makes waste race to the bottom.”

Fortunately, the Round Table and other members of the NDPA still share a “vision of what American justice should look like” and are willing to speak up for what’s legal and right rather than just “expedient!”

🇺🇸Due Process Forever!

PWS

12-09-21

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. “SITTING DUCKS” IN “UNSAFE THIRD COUNTRIES” — How The Supremes, The 9th Circuit, The 5th Circuit, & Other Complicit Federal Appellate Courts Aid & Abet The Trump Regime’s Human Rights Violations — Would The “Privileged Robed Ones” Take Due Process & The Rule Of Law More Seriously If It Were THEIR Kids & Grandkids Being Kidnapped & Held for Ransom For The “Crime” Of Seeking Protection Under U.S. Laws?  

⚖️4TH CIR. — CHIEF CIRCUIT JUDGE ROGER GREGORY (DISSENTING) CASTIGATES COLLEAGUES ON GRANTNG “CHEVRON DEFERENCE” TO BIA!

Chief Judge Roger Gregory
Chief Judge Roger Gregory
U.S. Court of Appeals
Fourth Circuit

Pugin v. Garland, 4th Cir., 12-01-21, published, 2-1 (Chief Judge Gregory, dissenting)

https://www.ca4.uscourts.gov/opinions/201363.P.pdf

GREGORY, Chief Judge, dissenting:

The majority concludes that because the phrase “in relation to obstruction of justice”

in § 1101(a)(43)(S) is ambiguous, the Board of Immigration Appeals’ (“BIA”) renewed interpretation of this provision is due Chevron deference. The majority also concludes that the BIA’s interpretation of “reasonably foreseeable”—in the context of before an investigation or proceeding—is reasonable. Because, in my view, the phrase is not ambiguous, the BIA is not due Chevron deference. However, even if § 1101(a)(43)(S) is ambiguous, the BIA’s conclusion that a formal nexus to an ongoing investigation is not required—based solely on the express exception in § 1512 and the catchall provision that it wrongly interpreted—is unreasonable. Thus, I disagree that Petitioner’s conviction of “Accessory After the Fact to a Felony,” under § 18.2–19 of the Virginia Code, is a categorical match with the generic offense of § 1101(a)(43)(S). For these reasons, I respectfully dissent.

. . . .

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

Of interest:

  • The “previous interpretation” discussed here, that the BIA subsequently “ditched” in favor of a more pro-DHS one, is Matter of Espinoza- Gonzalez, 22 I. & N. 889 (B.I.A. 1999), a “Schmidt Era” en banc decision written by Judge Ed Grant in which I joined.
  • 64 pages of arcane discussion and citations from three Circuit Court of Appeals’ Judges who cannot agree on the result shows the continuing disingenuous absurdity of a system that claims that “unrepresented” immigrants receive due process — many of these cases require not only lawyers, but great lawyers with expertise in immigration, criminal law, and statutory interpretation to achieve fair resolution;
  • Both the majority and the dissent “talk around” a major problem in the misapplication of “Chevron deference” to the BIA: In recent years, the BIA invariably adopts “any interpretation” offered by the DHS over better interpretations offered by respondents and their lawyers — this is a “rigged system” if there ever was one. For Article III Courts to “legitimize” the bogus application of Chevron by a non-expert tribunal that views itself as an extension of DHS Enforcement is a disgraceful dereliction of judicial duty!

🇺🇸Due Process Forever!

PWS

12-02-21

Related posts:

  1. GARLAND’S BIA, OIL “TAKE IT ON THE NOSE” AGAIN:  2d Cir. “Slam Dunks” Matter of J.M. Acosta, 27 I&N Dec. 420 (BIA 2018) (finality of conviction):  “The BIA’s burden-shifting scheme and its accompanying evidentiary requirement amounts to an unreasonable and arbitrary interpretation of the IIRIRA.” 
  2. PROFESSOR MAUREEN SWEENEY ON WHY THE BIA DOESN’T DESERVE “CHEVRON” DEFERENCE – JEFF SESSIONS’S ALL OUT ATTACK ON THE INDEPENDENCE OF THE IMMIGRATION JUDICIARY IS EXHIBIT 1!
  3. INSIDE EOIR: FOIA REVEALS THAT DURING “JUDICIAL TRAINING,” BIA APPELLATE IMMIGRATION JUDGE ROGER PAULEY INSTRUCTED FELLOW JUDGES ON HOW TO FIND INDIVIDUALS REMOVABLE BY AVOIDING THE LAW!
  4. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report

THE GIBSON REPORT — 11-29-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

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

Please note there will not be a weekly briefing on December 6, 2021.

 

PRACTICE UPDATES

 

All Temporary Protected Status (TPS) Applicants May Now File Forms I-821 and I-765 Online

 

EOIR Memo on Administrative Closure

 

Respondent Access Portal: EOIR’s Respondent Access allows Respondents to file forms with the immigration court and the Board of Immigration Appeals.

 

AO Covid Update: USCIS has updated the public website to reflect that field offices are expanding occupational capacities. Beginning November 29, 2021, the New York Asylum Office (ZNY) will be resuming in-person interviews, with the officer and the applicant’s party (including the attorney) in the same room.

 

NEWS

 

Proposed DACA Rule Draws Over 9K Comments

Law360: The Biden administration’s proposed rule to reinforce the Deferred Action for Childhood Arrivals, or DACA, program has attracted more than 9,300 responses ahead of Monday’s deadline for public comments, with many calling for broader changes than the regulations set out.

 

New York Moves to Allow 800,000 Noncitizens to Vote in Local Elections

NYT: The City Council is planning to approve a bill that would allow more than 800,000 noncitizen New Yorkers to register as members of political parties and vote in municipal elections, provided they are green card holders or have the right to work in the United States. The measure is expected to be approved on Dec. 9 by a veto-proof margin. It would allow noncitizens to vote in local elections, and would not apply to federal or state contests.

 

U.S. still seeking agreement from Mexico on return of asylum seekers

Reuters: The Biden administration and Mexico have not yet agreed to restart a Trump-era program obliging asylum seekers to await U.S. court hearings in Mexico, because certain conditions must first be met, two Mexican officials said on Wednesday. News outlet Axios reported earlier that returns under the program officially known as the Migrant Protection Protocols (MPP) could restart as soon as [this] week.

 

Under Trump, ICE aggressively recruited sheriffs as partners to question and detain undocumented immigrants

WaPo: Despite mounting concerns about discriminatory policing, the Trump administration aggressively recruited local law enforcement partners and courted sheriffs who championed similar views on immigration policy, according to dozens of internal ICE emails obtained by The Post.

 

New caravan sets off from Mexico as officials struggle with immigration claims

Reuters: Some 2,000 migrants and asylum seekers departed the southern Mexican city of Tapachula near the Guatemalan border overnight on Sunday in the latest in a series of caravans setting out for the United States.

 

Venezuelan migrants are new border challenge for Biden administration

WaPo: Record numbers of Venezuelan migrants have been crossing into the United States in recent months, posing a new border challenge for the Biden administration and raising concerns that more of the nearly 6 million people displaced from the South American nation could be heading north.

 

US citizen sues after month-long immigration detention

AP: He said he repeatedly told authorities he was American but was rebuffed by immigration agents, according to the suit. Bukle, who derived citizenship when he was 9 and his parents naturalized, was sent to the Mesa Verde Detention Facility in Central California for more than a month until an attorney got immigration authorities to verify his citizenship status and release him.

 

LITIGATION/CASELAW/RULES/MEMOS

 

SCOTUS Grants Cert. In Border Bivens Case: Egbert V. Boule

LexisNexis: SCOTUSblog case page for Egbert v. Boule, Docket No. 21-147 ” Issues : (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment right

 

Justices Won’t Review If Using Fake SSN Is ‘Moral Turpitude’

Law360: A Mexican woman facing removal for using a fake Social Security number lost her case Monday when the U.S. Supreme Court declined to hear her arguments for why the offense shouldn’t disqualify her from receiving deportation relief.

 

CA1 Says IJ and BIA Erred in Finding That Petitioner’s Prior Conviction Rendered Him Ineligible for Withholding of Removal

AILA: The court held that the IJ erred in informing the pro se petitioner he was eligible for potential relief only under the Convention Against Torture (CAT), and in treating his conviction for drug trafficking as if it were a per se bar to withholding of removal. (DeCarvalho v. Garland, 11/17/21)

 

5th Circ. Won’t Revive Gay Immigrant’s Asylum Bid

Law360: The Fifth Circuit on Monday upheld a ruling that a Mexican citizen who sought refuge in the United States because he is gay cannot remain in the country because the Mexican government “was able and willing to protect” him.

 

CA5 Upholds BIA’s Conclusion That Indian Petitioner’s Second Motion to Reopen Was Time and Number Barred

AILA: The court held that the BIA did not err in finding that the petitioner’s second motion to reopen for lack of notice was time and number barred under 8 CFR §1003.2(c)(2), because the petitioner had failed to inform the immigration court of his change in address. (Maradia v. Garland, 11/17/21)

 

CA6 Finds BIA Reasonably Concluded That Changed Conditions in the Congo Rebutted Petitioner’s Well-Founded Fear of Persecution

AILA: The court upheld the BIA’s denial of asylum, finding that the Board did not err in holding that governmental changes in the Congo—namely, that the petitioner’s own political party had assumed power—made any future political persecution unlikely. (Mbonga v. Garland, 11/22/21)

 

CA6 (2-1) – No Bivens At Border: Elhady V. Bradley

LexisNexis: Elhady v. Bradley Maj. – “In short, when it comes to the border, the Bivens issue is not difficult—it does not apply. And district courts would be wise to start and end there.

 

Evangelical Pair Wins Removal Relief On 3rd Go At 9th Circ.

Law360: A fractured Ninth Circuit panel on Tuesday undid a removal order against an Indonesian couple who say they fear persecution for their evangelical Christian beliefs, handing the parents of three a win on their third turn before the appeals court.

 

CA9 Declines to Rehear Soto-Soto v. Garland En Banc

AILA: The court issued an order denying the rehearing en banc of Soto-Soto v. Garland, in which the court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error. (Soto-Soto v. Garland, 11/18/21)

 

CA9 Upholds Denial of Motion for Reconsideration Where Petitioner Failed to Demonstrate Due Diligence for Equitable Tolling

AILA: Where petitioner had filed a motion for reconsideration arguing that a recent Supreme Court ruling rendered his conviction no longer a “crime of violence” aggravated felony, the court held that the BIA did not abuse its discretion in denying equitable tolling. (Goulart v. Garland, 11/18/21)

 

CA11 Remands Asylum Claim of Sri Lankan Petitioner Who Feared Future Persecution as a Tamil Failed Asylum Seeker

AILA: The court held that the BIA failed to give reasoned consideration to the Sri Lankan petitioner’s claim that, as a Tamil failed asylum seeker, he had a well-founded fear of future persecution, and thus remanded his asylum and withholding of removal claims. (Jathursan v. Att’y Gen., 11/17/21)

 

BIA Finds CA Carjacking Conviction is Categorically an Aggravated Crime of Violence

AILA: The BIA found that the respondent’s conviction for carjacking under section 215(a) of the California Penal Code is categorically a conviction for an aggravated felony crime of violence. Matter of A. Valenzuela, 28 I&N Dec. 418 (BIA 2021)

 

Proclamation on Suspension of Certain People Who Pose a Risk of Transmitting Omicron Variant

AILA: The White House issued a proclamation suspending and limiting the entry for certain immigrants and nonimmigrants who were physically present in countries where the Omicron variant of COVID-19 has been detected. Effective 11/29/21.

 

Effective Today: DHS Issues Updated Guidance on the Enforcement of Civil Immigration Law

AILA: DHS issued updated guidance on the enforcement of civil immigration law. Guidance is effective on 11/29/21 and will rescind prior civil immigration guidance.

 

USCIS Updates Policy Manual to Incorporate and Supersede Guidance on General Adjudications

AILA: USCIS issued a policy alert that it is incorporating and superseding existing guidance into the USCIS Policy Manual addressing topics in the context of general adjudications, including evidence, sworn statements, and adjudicative decisions.

 

EOIR Issues Policy Memo on Administrative Closure Following Matter of Cruz-Valdez

AILA: EOIR issued guidance to address administrative closure in light of Matter of Cruz-Valdez. Where a respondent requests administrative closure, and DHS does not object, the request should generally be granted and the case administratively closed. Guidance effective as of 11/22/21.

 

EOIR Announces Opening of Immigration Court in Santa Ana, CA

AILA: EOIR announced it will open a new immigration court in Santa Ana, California, on November 29, 2021. The court will include 22 immigration judges. At the time of opening, three judges will hear cases transferred from the Los Angeles – Olive Street court. EOIR has notified the affected parties.

 

DOS Provides Embassies and Consulates Broad Discretion to Prioritize Visa Appointments

AILA: DOS stated that the guidance to posts for the prioritization of consular services issued in November 2020 has been rescinded. Embassies and consulates have discretion on prioritizing visa appointments among the range of visa classes.

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

Monday, November 29, 2021

Sunday, November 28, 2021

Saturday, November 27, 2021

Friday, November 26, 2021

Thursday, November 25, 2021

Wednesday, November 24, 2021

Tuesday, November 23, 2021

Monday, November 22, 2021

 

 

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

Thanks, Elizabeth!

🇺🇸Due Process Forever!

PWS

12-01-21

Related posts:

  1. ⚖️THE GIBSON REPORT — 03-15-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Keep Up To Date On The Biden Administration’s Immigration Plans & Actions!
  2. ⚖️THE GIBSON REPORT — 03-22-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Georgetown Law Journal Makes History, Of The Best Kind! — My Invitation To Current Georgetown Law Students To Get Involved!
  3. THE GIBSON REPORT — 05-17-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Continuing To Highlight Garland’s Tone-Deaf Failure To Bring Justice, Due Process, Progressive Expertise To EOIR! — Hey Progressives & Due Process Advocates, Had Enough Of His “Amateur Night At The Bijou” Approach To EOIR? — Get Mad, Make Your Voices Heard, Demand Change, Demand Better! — Much Better!
  4. THE GIBSON REPORT — 07-26-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

THE GIBSON REPORT — 12-22-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal,Assistance Group

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

PRACTICE UPDATES

 

ICE Appointment Scheduler Overview:

ICE: The ICE Appointment Scheduler is an appointment scheduling and management tool developed by U.S. Immigration and Customs Enforcement (ICE) to help manage the scheduling of individual and family unit (FAMU) noncitizens required to appear before ICE for further immigration case processing. Only noncitizens apprehended and released by U.S Customs and Border Protection (CBP) via Prosecutorial Discretion (PD) can schedule appointments on the website at this time. There is a video tutorial link on the right side of the website.

 

Automated Case Information

EOIR has changed the automated case information website. Even though it looks like you have to type the A# one digit at a time, the web form still allows you to copy and paste a complete A# into the form, even with hyphens. Depending on the device you are using to view the website, you may need to scroll down to view the English-Spanish toggle. The web address also has changed, although the old address automatically redirects you for the time being.

English: https://acis.eoir.justice.gov/en/

Spanish: https://acis.eoir.justice.gov/es/

 

Certain Petitioners for U Nonimmigrant Status May Receive a Refund for Applications for Employment Authorization Submitted Before Sept. 30, 2021

USCIS: USCIS mistakenly rejected certain applications for employment authorization (Form I-765, Application for Employment Authorization) from petitioners for U nonimmigrant status that were filed without a fee (or request for fee waiver) from June 14 through Sept. 29, 2021.

 

NEWS

 

Immigration in Biden’s Build Back Better spending bill, explained

WaPo: The reconciliation bill would create the largest mass-legalization program for undocumented immigrants in U.S. history, but it falls well short of a path to U.S. citizenship. Roughly 7 million of the 11 million undocumented immigrants would be eligible to apply for work permits, permission to travel abroad, and benefits like state driver’s licenses, a major step for immigrants from Mexico, Central America and other lands who remain vulnerable to being deported. See also House Sends Biden’s $1.75T Budget Plan To Senate.

 

DHS stops releasing some migrants without providing immigration court dates

CNN: The Department of Homeland Security has stopped the practice of releasing migrants in the United States only with paperwork that tells them to report to an Immigration and Customs Enforcement office, Secretary Alejandro Mayorkas told senators Tuesday.

 

Budget Bill May Boost Unauthorized Immigrants’ Health Care

Law360: Millions of people living in the U.S. illegally face barriers to accessing affordable health care due to their immigration status, but the immigration provisions of a budget bill making its way through Congress could remove some of those obstacles.

 

Mayorkas Disputes Separation Payouts Would Spur Migration

Law360: U.S. Secretary of Homeland Security Alejandro Mayorkas blasted the previous administration’s zero tolerance immigration policy and told senators at a contentious hearing Tuesday that possible settlement payments to separated families would not necessarily incentivize future migration.

 

There Are No Immigrants Left in New Jersey County Jails. Where is ICE Sending Them?

Documented: In October 2021, all remaining detained immigrants from the Hudson County Jail, and just last week from the Bergen County Jail, were either transferred to other facilities, released or deported. Most were moved from New Jersey jails to two facilities in New York State: the Orange County Correctional Facility in Goshen and the Buffalo Service Processing Center in Batavia, near Buffalo.

 

Why Biden is struggling to revive the US refugee program

Vox: At the current pace, the US won’t come within striking distance of the 125,000 cap by the end of the fiscal year — and, given the State Department’s new refugee guidance, it’s unlikely that refugee agencies will be able to expand capacity to ramp up that pace soon.

 

3 million workers are missing amid the labor shortage, and 2 million of them are immigrants who never came to the US because of Trump-era policies

Business Insider: The current dearth of workers is mirrored by the number of working-age adults who would have lived in the United States if pre-Trump immigration trends persisted, according to 2020 US Census data.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Here Are the Immigration Cases Before the Supreme Court This Term

AIC: The Court’s decisions on these cases will impact access to: Federal court review over certain immigration judge decisions.

Bond hearings for certain noncitizens who have spent months in detention. Personal liability and damages for federal officers’ unconstitutional actions. The Court also will consider whether states can defend immigration policies that the federal government will no longer defend.

 

Matter Of Valenzuela, 28 I&N Dec. 418 (BIA 2021)

BIA: The respondent’s conviction for carjacking under section 215(a) of the California Penal Code is categorically a conviction for an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2018).

 

1st Circ. Orders Review Of Drug Crime Bar On Removal Relief

Law360: The First Circuit gave a Cape Verdean man a second shot at proving his conviction for possessing oxycodone doesn’t bar him from accessing deportation relief, ordering an immigration authority to weigh whether the decades-old precedent it applied is outdated.

 

CA5 Holds That BIA Erred by Treating Petitioner’s Adverse Credibility Determination as Dispositive of His CAT Claim

AILA: The court found that the BIA erred by refusing to consider the Sri Lankan petitioner’s country-conditions evidence in its likelihood-of-torture assessment with regard to his Convention Against Torture (CAT) claim, as required by 8 CFR §1208.16(c)(3). (Arulnanthy v. Garland, 11/8/21)

 

Biden ICE Policy Slammed As Illegal At 5th Circ.

Law360: A legal advocacy group that seeks to restrict immigration to the U.S. urged the full Fifth Circuit on Monday to reverse a panel decision that kept in place the Biden administration’s policy curbing immigration enforcement operations.

 

CA9 Says There Is No Colorable Constitutional Claim Exception to Statutory Limits on Judicial Review of Expedited Removal Orders

AILA: The court found it lacked jurisdiction to review petitioner’s challenge to his expedited removal proceedings, concluding that a recent Supreme Court decision abrogated any colorable constitutional claim exception to INA §242(a)(2)(A). (Guerrier v. Garland, 8/16/21, amended 11/9/21)

 

CA9 Rejects Challenge to Reinstatement Order Where Underlying Removal Order Was Legally Valid at Time of Entry and Execution

AILA: Dismissing the petition for review of an order reinstating petitioner’s removal order, the court held that the petitioner had failed to establish a gross miscarriage of justice that would permit it to entertain a collateral attack on the underlying order. (Lopez Vazquez v. Garland, 11/12/21)

 

9th Circ. Backs Removal Order Over Animal Abuse

Law360: The Ninth Circuit dismissed a Mexican man’s deportation appeal, finding that his past state conviction for animal cruelty encompassed both a guilty mental state and reprehensible actions, qualifying him for removal, despite his claim that he injured the animal accidentally.

 

9th Circ. Judges Scrap Over Burglar’s Removal Challenge

Law360: A divided Ninth Circuit panel refused to reopen a convicted burglar’s deportation case following a Supreme Court decision disqualifying his removal, with two judges locking horns over whether the migrant showed enough commitment to fighting for his rights in the interim.

 

11th Circ. Says BIA Ignored Facts In Sri Lankan’s Asylum Bid

Law360: The Eleventh Circuit breathed life into a Sri Lankan man’s bid for deportation protections on Thursday, finding that the Board of Immigration Appeals ignored evidence and misstated facts on the record when it denied him relief.

 

Court Won’t Fast Track ‘Remain In Mexico’ Reimplementation

Law360: A Texas federal judge refused to expedite the federal government’s reimplementation of a Trump-era program requiring asylum-seekers to wait in Mexico, saying the government has clearly documented its efforts to reinstate the program formally known as the Migrant Protection Protocols.

 

Ariz. Leads 2nd Suit From States Challenging Biden ICE Policy

Law360: Arizona, Montana and Ohio sued the Biden administration Thursday over guidance issued to U.S. Immigration and Customs Enforcement that aims to narrow the agency’s enforcement operations, marking the second such suit brought by states challenging the policies.

 

Documents Related to Lawsuit Seeking to Make Unpublished BIA Decisions Publicly Available

AILA: DOJ provided a status update on the settlement negotiations, which states that on 11/11/21, DOJ made a counteroffer to publish BIA decisions, subject to certain limitations, on a prospective basis and going back approximately five years. (NYLAG v. BIA, 11/17/21)

 

Calif. Sheriff Sued Over ‘Shadow’ System For ICE Transfers

Law360: The sheriff of Sacramento County has a “shadow” system for transferring inmates to U.S. Immigration and Customs Enforcement, violating California’s restrictions on local police cooperation with federal immigration authorities, according to a lawsuit announced Tuesday.

 

Title 42 Litigation Update – Updated

LexisNexis: Oral argument in Huisha-Huisha is scheduled for Wed., Jan. 19, 2022.

 

Biden Administration Files MPP Compliance Reports

AILA: The Biden administration filed compliance reports after a district court ordered the administration to submit information on key pieces of data and steps it was taking toward implementation of MPP.

 

USCIS Clarifies Guidance on Requests for Modifications to the Oath of Allegiance

AILA: USCIS clarified that if a naturalization applicant requests oath modification but does not provide oral testimony or evidence, officers should issue a Request for Evidence. Guidance effective 11/19/21, comments due by 12/20/21.

 

Biden Admin. Bars Nicaraguan Officials From US

Law360: The Biden administration on Tuesday barred Nicaraguan government officials from entering the U.S. over President Daniel Ortega’s continued assault on democratic processes, civil society and human rights, nine days after elections the White House called a “pantomime.”

 

Biden Lifts Human Rights Sanctions On Burundi Officials

Law360: The Biden administration on Thursday lifted Obama-era restrictions on Burundi government officials who that administration held responsible for the human rights abuses that plagued the African country during a former president’s controversial third term.

 

DHS Update on the Investigation of Horse Patrol Activity in Del Rio, Texas

AILA: DHS provided an update on the horse patrol activity in Del Rio, Texas on September 19, 2021. DHS OIG declined to investigate and referred to CBP’s Office of Professional Responsibility. Once an investigation is completed, CBP management will determine whether disciplinary action is appropriate.

 

RESOURCES

 

 

EVENTS

   

 

ImmProf


Monday, November 22, 2021

Sunday, November 21, 2021

Saturday, November 20, 2021

Friday, November 19, 2021

Thursday, November 18, 2021

Wednesday, November 17, 2021

Tuesday, November 16, 2021

Monday, November 15, 2021

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

🇺🇸DUE PROCESS FOREVER!

PWS

11-22-21

Related posts:

  1. THE GIBSON REPORT — 05-17-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Continuing To Highlight Garland’s Tone-Deaf Failure To Bring Justice, Due Process, Progressive Expertise To EOIR! — Hey Progressives & Due Process Advocates, Had Enough Of His “Amateur Night At The Bijou” Approach To EOIR? — Get Mad, Make Your Voices Heard, Demand Change, Demand Better! — Much Better!
  2. THE GIBSON REPORT — 07-26-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  3. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  4. ⭐️⭐️⭐️⭐️⭐️⚖️🗽🇺🇸FORMER DEPUTY AG DON AYER, JUDGE MIMI TSANKOV AMONG “HEADLINERS” AT TIMELY UPCOMING NY CITY BAR ASSN. EVENT: “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” — Register Now, Right Here!

⚠️BIA’S GRUDGING ACCEPTANCE OF SUPREMES’ RULING ON “STOP TIME RULE” MASKS ATROCIOUS ANTI-ASYLUM PRECEDENT TARGETING INDIGENOUS REFUGEES! — Garland Ignores Bad Law, Anti-Immigrant Precedents Flowing From His Court!”🤮 — Matter of M-F-O-, 28 I&N Dec. 428 (BIA 2021)

https://www.justice.gov/eoir/page/file/1446396/download

“Floaters”
Garland, Mayorkas, and other Biden honchos appear unable to get beyond this “Stephen Miller vision” for legal asylum seekers. “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

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

“Inside Baseball”⚾️  — The human, administrative, and taxpayer costs of the BIA’s unwillingness to uphold the statute in the face of DHS and EOIR “Management” intransigence — and their disregard for clear warning signals from the Supremes — are unfathionable to anyone outside this totally dysfunctional and out of control system! See, e.g., https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-stop-time-rule-quebrado-cantor-v-garland.

Could there be any clearer example of the need to take this mess out of the DOJ and create a competent, expert, independent Article I Immigration Court with real judges?

The asylum/withholding portion of this decision appears to be an atrocious misconstruction and intentional misapplication of asylum law by the BIA!

In fewer than five minutes of “internet research,” I found three authoritative pieces of evidence that should have been sufficient to show an endemic, ongoing racial and psg persecution of Indigenous Guatemalans and a total failure of state protection. See, e.g., https://www.govinfo.gov/content/pkg/USCOURTS-ca6-18-03500/pdf/USCOURTS-ca6-18-03500-0.pdf;  https://monthlyreview.org/2020/09/01/a-violent-guatemala/; https://minorityrights.org/trends2018/guatemala/.

This, in turn, should long ago have been adequate for a BIA of better-qualified appellate judges who have asylum expertise and are willing to to stand up for the legal rights of asylum seekers to issue a precedent finding a “pattern or practice” of such persecution in Guatemala. See, e.g., 8 C.F.R. § 1208.13(b)(2)(iii)(A). 

With such a precedent, cases like this could be expeditiously granted at the Asylum Office or in focused Immigration Court hearings, instead of “kicking around the system” for more than three years and then being wrongly decided at both the trial and appellate levels. Wonder why our immigration system is a mess? Look no further than Garland’s anti-immigrant EOIR!

The panel’s conclusion that indigenous status wasn’t even “a reason” for gang persecution is preposterous — proof of institutional bias against asylum seekers, particularly those from the Northern Triangle!

The improperly and intentionally skewed asylum denial rates at our Southern Border feed the nativist fiction that asylum seekers are illegally seeking entry into the US. In reality, they appear to be victims of systemic racial, ethnic, and xenophobic bias fueled by both DHS and DOJ even under this Administration. 

We currently have no functioning legal asylum system at ports of entry, nor have we had one for several years. “Gimmicks” like “Remain in Mexico” and “Title 42” have illegally replaced our legal protection system. 

Why WOULDN’T folks seek refuge through irregular entry in such an insane situation? Who in their right mind wouldn’t? 

This system further generates bogus “apprehension” numbers used by DHS, DOJ, and politicos of both parties to generate false panic about the arrival of persons seeking legal status that we have unlawfully suspended! 

Many of these individuals deserve to be legally admitted and allowed to contribute to our society! Instead, they are demonized, demeaned, dehumanized, and otherwise mistreated by our Government.

Indeed, GOP politico-restrictionist-alarmists are already trying to inflame public opinion by raising the manufactured “specter” that a slow moving so-called “caravan” of unarmed, desperate, and vulnerable migrants seeking to apply for legal refuge from some of the most repressive and dangerous countries in the world are an existential threat to the security of what is supposed to be the most powerful nation on earth! Letter asking BIden to enforce laws at brder 11.4.21 What poppycock! 

They mischaracterize the group as having “nonexistent asylum claims.” But, how would they or anyone else know, since we currently have no system to fairly adjudicate such claims and no reliable information about the individual circumstances on which they are based? 

Instead of engaging in racially charged panic and lawless enforcement, why not just direct them to report to legal ports of entry where they could be properly screened by trained Asylum Officers in a prompt and fair manner? 400 well-trained Asylum Officers doing two cases per day could complete the screening in a matter of days or several weeks at most! 

Those who pass credible fear could be referred to Immigration Court in cooperation with legal aid and NGO groups to help them prepare and insure appearance. Represented asylum seekers appear for Immigration Court at a rate approaching 100%! Why wouldn’t an Administration truly interested in a fair and orderly asylum system concentrate on increasing representation  rather than imposing more “guaranteed to fail” enforcement-only gimmicks?

Those who do not pass credible fear could be returned, provided that can be done in a safe and humane manner, perhaps working with the UNHCR and other international aid organizations to insure safe and orderly acceptance in the home nations.

And, unlike the current lawless system, we would actually have some empirical information about the claims of those applying at the border. It seems likely that under a fair and legal application asylum law, many would have valid asylum claims. But, without a fair hearing system and more Immigration Judges and BIA judges who are experts in asylum law and will fairly apply it, who knows? Right now, everyone is just “guessing” about the potential merits the claims because we don’t now have, and haven’t for some years had, a fair system for deciding those individual cases!

Here’s a still-timely article from Professor Bill Hing (ImmigrationProf Blog) about how we are repeating our past mistakes of mistreating Central American asylum seekers. https://repository.uchastings.edu/hastings_race_poverty_law_journal/vol17/iss2/5/

The same is true of Haitians seeking asylum. https://lawprofessors.typepad.com/immigration/2021/11/biden-is-replaying-a-forgotten-us-atrocity-against-haitian-refugees.html

An Administration unwilling to stand up for values, justice, and the rule of law for the most vulnerable among us doesn’t stand for much of anything at all. Maybe cowardice and lack of moral compass is the reason why Dems can’t govern and keep losing elections they should have won!

The GOP long ago “cornered the market” on dishonesty, immorality, and anti-democratic behavior. The Dems can gain nothing, and lose much, by emulating them!

🇺🇸Due Process Forever!

PWS

11-05-21

Related posts:

  1. 🛡⚔️👍🏼“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!
  2. 🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO:  “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. 🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!

🆘⚖️MR. NEGUSIE’S 17-YR ODYSSEY INTO JUDICIAL NEVER-NEVER LAND CONTINUES —  GARLAND’S CERTIFICATION OF MATTER OF NEGUSIE, 28 I&N DEC. 399 (A.G. 2021) — A Microcosm Of All That’s Wrong With Our Immigration Court System — 17 Years, 4 Administrations, 5 Different Tribunals, 0 Final Resolution! — Calling Charles Dickens! 

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTEwMTIuNDcyNTU4OTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9lb2lyL3BhZ2UvZmlsZS8xNDQxMjYxL2Rvd25sb2FkIn0.5W9gUw8pz8DPzsg7kAN8OnR6-Fn9dKgiW5oNm1UqGzM/s/842922301/br/113790680583-l

Cite as 28 I&N Dec. 399 (A.G. 2021) Interim Decision #4029

Matter of NEGUSIE, Respondent

Decided by Attorney General October 12, 2021

U.S. Department of Justice Office of the Attorney General

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).

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

This terse decision conceals a total, disgraceful mess in our justice system!

  • Mr. Negusie, the respondent in this case, filed his asylum application before an Immigration Judge in 2004 — 17 years ago!
  • In 2005, the IJ denied his application because of the so-called “persecutor bar,” but “deferred” his removal to Eritrea under the Convention Against Torture(“CAT”).
  • The BIA affirmed the IJ’s decision.
  • In 2007, the 5th Circuit affirmed the BIA.
  • In 2009, the Supreme Court reversed the BIA, and remanded the case to the BIA under their “Chevron doctrine” of “judicial task avoidance,” Negusie v. Holder, 555 U.S. 511 (2009].
    • At that time, in separate opinions, five Justices expressed rather definitive views about the substantive legal issue.
    • Justices Thomas, Scalia, and Alito all clearly believed that there should be no “duress exception” to the persecutor bar.
    • Justices Stevens and Breyer obviously thought that there was a “duress exception.”
    • The other four, Chief Justice Roberts, Justices Kennedy, Souter, & Ginsburg, had obviously studied matter, but rather than resolving the issue, chose to “punt” it back to the BIA for their supposed “expert interpretation” — an unusual “vote of confidence” in an administrative body they had just found to have misinterpreted their prior decisions.
  • “The Interregnum:” For the next nine years, during which both Administrations and BIA membership changed several times, the BIA “ruminated” on the task assigned them by the Supremes. Finally, in 2018, the BIA issued a precedent decision finding a limited “duress defense.”  Matter of Negusie, 27 I&N Dec. 347 (BIA 2018). Nevertheless, the BIA found that Negusie didn’t qualify for that limited defense. So, Negusie lost! But, that was hardly the end of the matter within the convoluted world of the DOJ!
  • Despite the Government’s prevailing in Negusie’s case, four months later, AG Sessions “certified” that decision to himself.
  • Two years later, in 2020, another AG, Billy Barr, who had succeeded Sessions, reversed the BIA in a precedent, finding that there was no “duress exception,” however limited, to the “persecutor bar.” Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020). Mr.Negusie lost once again, but this time on a different rationale than employed by the BIA!
  • The case was returned to the BIA for “background checks,” since Mr. Negusie’s removal had been indefinitely “deferred” under the Convention Against Torture (“CAT”). After Mr.Negusie’s background “cleared,” the BIA apparently entered a final order of removal to Eritrea, but “deferred” execution of that order under CAT.
  • Thereafter, on April 15, 2021, Mr. Negusie exercised his right to seek review in the 5th Circuit for the second time. https://dockets.justia.com/docket/circuit-courts/ca5/21-60314
  • But, before that review was complete, AG Garland “certified” the last BIA decision (actually Barr’s 2020 precedent) for review, thus “staying” its effect.
  • Summary: one IJ decision; three trips to the BIA; two trips to the Fifth Circuit; three AG decisions; one trip to the Supremes = no decision on a 2004 application!
  • In other words, five different tribunals have had this case before them at least nine times over 17 years without finally resolving the issue!
  • In the meantime, I can tell you from past experience that this issue arises on a regular basis before Immigration Judges. They, in turn, must resolve it as best they can without definitive guidance from higher judicial authorities, sometimes relying on “precedents” that later are vacated or invalidated.
  • The solution: How about a BIA made up of real judges: true nationally respected experts and “practical scholars” in immigration, human rights, and due process who will provide timely, legally correct guidance at the initial appeal level?
  • And, if they do happen to get it wrong, how about Supremes that decide the legal issues coming before them, as they are paid to do, rather than aimlessly “orbiting” legal questions back to the lower tribunals that got them wrong in the first place under the highly problematic “Chevron doctrine of high-level judicial task avoidance?”
  • Also, in the event such reforms were made, how about Attorneys General, who traditionally have particular expertise in neither immigration nor human rights, keeping their “fingers out of the pie” and letting the real experts do the work? (In this respect, while AG Sessions had a long, disgraceful political history of advancing far right, xenophobic, racist, misogynistic tropes, such that his nomination to become a Federal Judge was rejected by his own party, no recognized immigration/human rights expert would classify Sessions as having either legal expertise in the area or proper qualifications to serve in any judicial capacity including a “quasi-judicial” one, particularly in areas where he had previously and consistently shown extreme bias and intellectual dishonesty in his public statements and actions. Nor did AG Barr have any legitimate expertise that would qualify him to participate in quasi-judicial capacity in immigration and human rights cases. While, ordinarily, a Federal Circuit Judge with long service would acquire some immigration experience and perhaps develop expertise, Judge Garland sat on the DC Circuit, which did not regularly review Immigration Court cases, because there is no Immigration Court sitting in D.C.) 
  • One might also ask why the Supremes would remand to a purportedly “expert agency” for statutory interpretation, only to have the process hijacked by politicos?
  • Finally, multi-raspberries to Congress who let this disgraceful abuse of both taxpayer resources and our justice system go on, in plain sight, for decades without corrective action. America needs an independent Article I Immigration Court, with judges selected on a merit basis, NOW!
  • Where’s Charles Dickens when we need him? See, e.g., Jarndyce v. Jarndyce.

🇺🇸Due Process Forever!

PWS

10-15-21

Related posts:

  1. 🆘🤮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! 🏴‍☠️
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. ⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!

⚖️GARLAND’S BIA IMMEDIATELY “STUFFED” BY AMERICA’S MOST CONSERVATIVE CIRCUIT ON BOGUS ANTI-IMMIGRANT PRECEDENT! — Last Thursday, The BIA “Dissed” The Supremes Again In Arambula-Bravo  — Yesterday, The Fifth Circuit Said “Not So Fast” In Rodriguez v. Garland! — Piecemeal Notice Cannot Be Basis For In Absentia Order!

Kangaroos
“Supremes? What Supremes? We work for Judge Garland @ DOJ, and he’s very, very tolerant of our anti-immigrant, pro-DHS ‘culture,’ and institutionalized poor decision-making over here at ‘his EOIR!’ Our jobs are safe, and that’s all that matters! To hell with ‘the others!’ ‘Jeffie Gonzo’ and ‘Billy the Bigot’ told us to treat migrants like the ‘trespassers’ and ‘scum of the earth’ they really are! It’s not like OUR families were ever migrants!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

 

Rodriguez v.Garland, 5th Cir., 09-27-21, published

RODRIGUEZ V GARLAND, 5TH ON NIZ

PANEL: Higginbotham, Willett, and Duncan, Circuit Judges.

OPINION: Judge Patrick Higginbotham

KEY QUOTE:

The initial NTA did not contain the time and date of Rodriguez’s hearing. The BIA found that the NTA combined with the subsequent NOH containing the time and place of Rodriguez’s hearing “satisfied the written notice requirements of [8 U.S.C. § 1229(a)],” directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear that subsequent notices may not cure defects in an initial notice to appear. The BIA applied a “legally erroneous interpretation[].”23

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

Judge Higginbotham was appointed by President Ronald Reagan. Even conservative Article III Judges aren’t as anxious to snub the Supremes as the BIA.

After all, the BIA works for the Attorney General, not the Supremes. So, who cares whether their decisions comply with the rulings of the Article III Courts, so long as their political “handlers” at the DOJ are pleased with the pro-DHS outcome! That’s what happens when a “captive court” is encouraged to view itself as an extension of their “partners” at DHS enforcement, carrying out the political agenda of their DOJ superiors who control their paychecks and their career destiny!

Wow! It took fewer than three business days for Garland’s latest venture into obtuse anti-immigrant decision-making at the BIA, Matter of Arambula-Bravo, to hit a brick wall! In the 5th Circuit, no less! Back in the “old days” of the “Legacy INS,” it was a very bad sign when we couldn’t “sell” a position to the 5th Circuit!

“Courtside” saw this coming a mile away! https://immigrationcourtside.com/2021/09/25/bia-going-for-trifecta-already-rebuked-twice-by-supremes-for-ignoring-statutory-definition-of-notice-to-appear-bia-chooses-to-snub-high-court-again/

Have to wonder if Judge Garland would have been so sanguine with the dissing of the Supremes by the BIA if he had actually become “Justice Garland?” 

As my esteemed colleague Judge “Sir Jeffrey” Chase noted, the position adopted by the 5th Circuit in Rodriguez:

is the same argument we [the “Round Table”] made in our recent amicus brief to the Board – in a published decision, the 5th Cir. granted a PFR and vacated the Board’s decision denying a motion to rescind an in absentia order where there was no proper service due to a defective NTA under Niz-Chavez.

By failing to replace the BIA with better qualified progressive expert judges who will issue correct precedents (even when they might benefit immigrants) and require “best practices” in the now-totally-dysfunctional Immigration Courts, Garland is further building backlog by generating thousands of unnecessary remands and reopenings. How long will it take him to reach the 2 million case mark?

“Bogus dedicated dockets,” gross misuse of the discredited “Title 42” rationale to deny due process, increased use of “expedited removal,” proposals to “rubber stamp” asylum and credible fear denials, badly skewed pro-enforcement interpretations that throw the fate of hundreds of thousands of cases into the Circuits and the Supremes aren’t going to solve the problem!

Never underestimate the adverse effects of bad judging, particularly in a high volume system where incorrect precedents result in wrong decisions in hundreds of cases every day! Conversely, you can’t overestimate the positive potential of progressive expert judges who would get the results correct at the “retail level;” force some badly needed quality control, discipline, and consistency at both EOIR and DHS; and solve problems rather than creating them!

Sadly, Garland doesn’t “get it!” And that will be a continuing unmitigated disaster for our democracy and our justice system! Such a lost opportunity!

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge Merrick B. Garland? “Not my friends, relatives, or attorney buddies whose lives are being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their ‘scuzzy, unimportant immigration lawyers,’ so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

🇺🇸Due Process Forever!

PWS

09-28-21

Related posts:

  1. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  2. ⚖️👍🏼😎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!
  3. 🆘🤮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! 🏴‍☠️
  4. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!

BIA GOING FOR “TRIFECTA?” — Already Rebuked Twice By Supremes For Ignoring Statutory Definition Of “Notice To Appear,” BIA Chooses To Snub High Court Again — Matter of  Arambula-Bravo

Obviously, THESE are the practical scholar/immigration experts who belong on the BIA:

Kit Johnson
Kit Johnson
Associate Professor of Law
University of Oklahoma Law School
Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

 

https://lawprofessors.typepad.com/immigration/2021/09/bia-distinguishes-niz-chavez-pereira-find-no-jx-problem-with-nta-lacking-timedate.html

Professor Kit Johnson reports for ImmigrationProf blog:

Thursday, September 23, 2021

BIA Distinguishes Niz-Chavez, Pereira, Finds No Jx Problem With NTA Lacking Time/Date

By Immigration Prof

Share

The Board of Immigration Appeals has issued a decision in Matter of  Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). Here is the summary:

(1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.

(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).

In my 2018 article, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, I reached the exact opposite conclusion.

I am hardly the only one to argue that such an NTA should deprive the court of jurisdiction. Immprof Geoffrey Hoffman (Houston), frequent contributor to this blog, submitted an amicus brief to the BIA on this case arguing that an NTA without time or place information is “defective” under Niz-Chavez and cannot be cured by the later issuance of a Notice of Hearing.

Now the waiting game for SCOTUS intervention begins again. I’m hoping for another scathing opinion by Justice Gorsuch. His Niz-Chavez decision was fire.

-KitJ

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

INA section 239(a) defines a Notice to Appear, the document used to initiate a removal proceeding in Immigration Court, as including, among other statutory requirements: “G)(i) The time and place at which the proceedings will be held.” Could not be clearer!

The requirements of section 239(a) are hardly onerous. Indeed, several decades ago, the Government had developed an “interactive scheduling system” that allowed DHS to specify the exact time, place, and date of a respondent’s initial Master Calendar hearing in Immigration Court.

However, rather than expanding and improving that system, DHS and EOIR decided to cut corners to accommodate the “uber enforcement” agendas pushed by Administrations of both parties over the past two decades. Their “haste makes waste, good enough for Government work approach” led them to ignore the requirements for a proper NTA and instead issue “piecemeal notices.” 

This, of course, increased the unnecessary workload for already-stressed, overwhelmed EOIR Immigration Court clerks, resulted in many more defective notices, more unnecessary bogus “failures to appear,” more improper “in absentia removal orders,” more Motions to Reopen those wrongfully issued orders, and more appeals from improper failures to grant such motions. It also sent more of these preliminary matters into the Circuit Courts for judicial review.

Basically, it’s a microcosm of how an unconstitutional, non-independent “wholly owned court system” “pretzels itself” to accommodate DHS enforcement, misconstrues the law, and attempts to legitimize “worst practices” to please its political overlords, thereby creating endless and largely avoidable case backlogs — now at an astounding 1.4 million cases!

Even worse, when the backlogs finally capture public attention and “hit the fan,” EOIR, DHS, and DOJ disingenuously attempt to shift the blame and the consequences for their failures onto the VICTIMS: respondents and their long-suffering, often pro bono, attorneys! The incompetents at EOIR then cut even more corners and issue more bad precedents misconstruing the law in an attempt to cover up their own wrongdoing and that of their political masters. The latter’s understanding of how to run an efficient, due-process oriented, fair and impartial court system could be put in a thimble with space left over!

The vicious cycle of unfairness, injustice, and incompetence at EOIR continues endlessly, toward oblivion.

As Kit cogently points out, better interpretations, ones that complied with the statute and could be tailored to achieve practical solutions were available and actually submitted to the BIA. The BIA, as usual, brushed them off in favor of trying to please DHS and avoid both the statutory language and the Supremes’ clear direction.

So, something that a properly comprised BIA, composed of true progressive immigration experts and practical scholars, could have solved in a legal and practical manner, will undoubtedly head to the Supremes for a third time. We might not know the result for years, during which the BIA’s bad interpretation will generate additional potential backlog as well as unjust removals.

So, our Round Table ⚔️🛡can start perfecting our Arambula-Bravo amicus briefs now!

It’s time for a change at EOIR!

🇺🇸Due Process Forever!

PWS

09-25-21

Related posts:

  1. ⚖️👍🏼😎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!
  2. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  3. ☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts —  How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?
  4. 🆘🤮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! 🏴‍☠️

🇺🇸🗽⚖️😎BREAKING: FINALLY! — U.S. District Judge Emmet Sullivan Enjoins Biden’s Scofflaw Continuation Of Trump’s Illegal & Immoral Misuse Of Title 42 To Abuse Asylum Seekers! –“There is generally no public interest in the perpetuation of an unlawful agency action.”

Hon. Emmet G. Sullivan
Hon. Emmet G. Sullivan
US District Judge
DC

Here’s the decision in Huisha-Huisha v. Mayorkas:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/court-trump-biden-cdc-title-42-border-blockade-enjoined

KEY QUOTE

Finally, Defendants argue that “[a]ny time [the government]
is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable
injury.” Defs.’ Opp’n, ECF No. 76 at 38 (quoting Maryland v.
King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the
Title 42 Process is likely unlawful, and “[t]here is generally
no public interest in the perpetuation of an unlawful agency
action.” Newby, 838 F.3d at 12.

*********************************“

“There is generally no public interest in the perpetuation of an unlawful agency action.” Yup! Couldn’t have said it better myself!

Who knows if this will stand. Both the DC Circuit and the Supremes have too often been willing to allow continued Government abuse of the rights of “mere migrants,”  mostly of color, because they can’t really see them as fellow human beings,  entitled to due process, justice, and human dignity!

But, at least for this moment in time, it’s a victory for due process, humanity, and judicial integrity.

🇺🇸Due Process Forever!

PWS

09-16-21

 

 

Related posts:

  1. ☹️BIDEN ADMINISTRATION DELIVERS FAMILIAR MESSAGE TO ASYLUM SEEKERS STUCK IN MEXICO: “Wait, While We Study & Think, Hope You’re Still Alive By The Time We Figure It Out!” — Lots Of Talk, Not Much Action Marks Latest Executive Orders Looking To Revisit The Chaos & Dysfunction Left By Four Years Of Miller’s White Nationalist Agenda!
  2. 🏴‍☠️CLOSING THE BORDER TO LEGAL ASYLUM SEEKERS IS A VIOLATION OF BOTH DOMESTIC & INTERNATIONAL LAW — It’s Neither Something To Tout (Biden Administration) Nor A Solution (GOP) (Except, Perhaps, In The “Hitlerian” Sense) — Our Inability To Solve A Humanitarian Situation By Acting Lawfully, Sensibly, & Humanely Is A Sign Of Gross National Weakness Spurred By Unwillingness To See The Human Tragedies We Are Promoting! — And The Lousy, Misleading, & Tone-Deaf Reporting By The Some Of The “Mainstream Media” Is Making It Worse! — Leon Krauze & Suzanne Gamboa With Simple Truths About Human Migration That Neither Pols Nor Nativists Want You To Hear! — PLUS BONUS COVERAGE: Friday Mini-Essay: “Degrading Ourselves As A Nation Won’t Stop Human Migration”
  3. 🇺🇸🗽⚖️MORE GOOD NEWS FOR AMERICA AS TRUMP KAKISTOCRACY☠️🦹🏿‍♂️⚰️ FINALLY COMES TO AN END: Biden Will Move Immediately For Sane, Humane, Practical Immigration Policies — Wants To Put Trump’s Cruel, Racist, Stupid Abuses Of Humanity, Common Sense, Rule Of Law, & America’s Immigrant Heritage In The Rear-View Mirror! — Promises Reversal Of DHS’s Role As White Nationalist “Political Police Force”🏴‍☠️☠️ That Beat Up On the Most Vulnerable While Ignoring Real Security Threat Posed By Trump-Inspired Righty Domestic Terrorists!
  4. ☠️⚰️🤮👎🏽BREAKING: DC CIR. OK’s BIDEN ADMINISTRATION’S CONTINUED RETURN OF ASYLUM APPLICANTS TO DEATH ☠️ & DANGER WITH NO PROCESS!🏴‍☠️

⚖️🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️👨🏾‍⚖️BIDEN TAPS DIVERSE GROUP OF PROGRESSIVES FOR ARTICLE III JUDGESHIPS, EVEN AS CAL DEM SENS DRAG FEET, & GARLAND CONTINUES TO RUN AMERICA’S MOST REGRESSIVE, DYSFUNCTIONAL, DISRUPTIVE, & NON-DIVERSE JUDICIARY @ EOIR! — How Are Progressives Going To “Climb The Mountain” When Garland Won’t Even “Pick The Low Hanging Fruit?”

Jennifer Bendery
Jennifer Bendery
Journalist
HuffPost
PHOTO: Twitter

Jennifer Bendery reports for HuffPost:

https://www.huffpost.com/entry/joe-biden-judicial-nominees-diverse_n_6138c48ee4b0eab0ada03532

President Joe Biden announced another historic slate of judicial nominees on Wednesday who would bring badly needed diversity to the nation’s federal courts.

His picks also begin to address a major vacancy problem on California’s courts.

Biden announced a total of eight new judicial nominees; three would fill seats on the U.S. Court of Appeals for the 9th Circuit and five would fill seats on U.S. district courts. All are up for lifetime appointments.

With Wednesday’s nominees, Biden has now nominated a total of 43 people to federal judgeships. Thanks in part to the Democrat-led Senate, he has been confirming judges faster than any president in more than 50 years by this point in their terms.

His latest nominees also reflect his push to bring more diversity to the federal bench, both professionally and demographically. The courts have long been represented by white, male judges with backgrounds as corporate attorneys or prosecutors. President Barack Obama helped to diversify the courts, adding historic numbers of women and LGBTQ judges, for example. But former President Donald Trump reversed that trend by overwhelmingly nominating straight, white, male, right-wing ideologues.

As a candidate, Biden vowed to bring a diversity of perspectives onto the courts, even promising to nominate a Black woman to the Supreme Court if and when a seat opens up there. He’s kept his word; so far, his court picks have been public defenders, civil rights lawyers, voting rights lawyers and historic firsts with Native American and Muslim American picks.

Wednesday’s nominees include people with backgrounds at legal civil rights organizations, too. Thomas worked for the NAACP Legal Defense and Educational Fund. Urias and Vera both worked for the Mexican American Legal Defense and Educational Fund.

California’s senators praised Biden for his six picks for courts located in their state.

“If confirmed, this slate of nominees will bring historic personal and professional diversity to California’s federal bench,” said Sen. Alex Padilla (D-Calif.). “Our justice system needs the experience and unique perspectives these public servants bring.”

But California needs far more nominees than Biden put forward Wednesday. The state still has a whopping 15 vacancies on its federal courts, in part because the state’s two U.S. senators aren’t moving quickly enough to recommend people to the White House to fill those seats.

Sen. Dianne Feinstein (D-Calif.) acknowledged there is more work to be done here.

“There are 15 additional vacancies on California’s district courts that need to be filled immediately and more expected next year,” Feinstein said. “I look forward to continuing to work with President Biden and Senator Padilla to ensure that the remaining vacancies on the federal courts in California are filled with well-qualified judicial candidates who reflect the makeup of the state.”

. . . .

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

Read the complete story at the link.

It’s an important step — but only a first step in the process of creating a diverse progressive Federal Judiciary, from top to bottom!

Meanwhile, a house built on a bad foundation is in trouble! In this case, that crumbling foundation is the nearly 600-judge U.S. Immigration Court at both the trial and appellate levels. 

This “court” system, with nationwide jurisdiction and life or death authority over millions of lives and American families, is regressive, dysfunctional, and non-diverse, particularly when taking into account the composition of the American communities most directly affected by it’s too often defective, unprofessional, and biased decision making. That’s hardly surprising, because it was largely expanded, packed, weaponized, staffed, and directed in the “image” of Jeff Sessions, Billy Barr, and Gauleiter Stephen Miller! 

Unlike Article III Judges, Immigration Judges currently are considered “DOJ Attorneys” who are selected outside the competitive Civil Service, have no “tenure” in their quasi-judicial positions, are subject to the control of the Attorney General, and can be reassigned, or in some cases terminated, at the will of the Attorney General. In simple terms, Garland could fix this badly broken system, but hasn’t done so. 

The sorry condition of today’s Immigration Courts (“EOIR”) is particularly disgraceful when one considers the wide, diverse, progressive pool of potential judicial talent available in the private/NGO/sector who were either discouraged from applying under Trump or passed over in favor of lesser-qualified candidates perceived (whether accurately or not) to be more receptive and obedient to the overtly White Nationalist, xenophobic stance promoted by Trump’s DOJ.

To date, Garland has replaced zero (0) of the Trump judicial appointees. He has hired no notable progressive judges as inspirational leaders. He “promoted” one notable progressive to be among the several dozen “Assistant Chief Immigration Judges.” He outrageously appointed his first 27 Immigration Judges from among those “preselected” by Barr under defective procedures that have been universally condemned by progressive experts!

For the most part, without any progressive judicial leadership, precedents, or procedures, EOIR rambles on producing the same sloppy, haste-makes-waste, anti-immigrant, anti-asylum, racially and misogynistically tinged decisions that were the “hallmark” of the Trump-era EOIR.

If things don’t change quickly, I guarantee that American progressives will come to rue the squandered opportunity to radically reform EOIR and convert it into a model progressive judiciary that will showcase due-process-focused judging, innovation, and best judicial practices while saving lives and promoting racial justice, gender rights, and equal justice for all at the critical “retail level” of our justice system!

🇺🇸Due Process Forever! 

PWS

09-10-21

Related posts:

  1. 🧑🏽‍⚖️👨🏻‍⚖️⚖️BIDEN & WARREN BELIEVE IN A DIVERSE, PROGRESSIVE FEDERAL JUDICIARY — JUDGE GARLAND CONTROLS PERHAPS THE MOST IMPORTANT FEDERAL JUDICIARY NEXT TO THE SUPREMES — So, What’s He Waiting For? — Will He Reverse The Dems’ Maddening Failure To Grasp & Act On The Cosmic Importance & Game Changing Potential Of A Progressive Immigration Court, That Gets Beyond The Often White, Male, Enforcement, “Go Along To Get Along” Stereotypes & Showcases Diverse, Progressive “Practical Scholars,” Many Of Them Women & People Of Color?
  2. ⚖️🧑‍⚖️☠️ SEN. SHELDON WHITEHOUSE (D-RI) HIGHLIGHTS RIGHT’S SUPREME TAKEOVER! — My Thoughts On “Agency Capture” By Nativists @ EOIR Under Garland!
  3. Judge Mimi Tsankov @ ABA JOURNAL: 🆘 Immigration Courts Now A Human Rights Catastrophe Threatening The Heart ❤️ & Soul 😇 Of American Justice!
  4. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

🇺🇸🗽⚖️NDPA VIRTUAL OPPORTUNITY: Meet Rising Superstar 🌟  & Social Justice Advocate Denea Joseph, Current Ousley Social Justice Resident @ Beloit College — Friday, Sept. 17 @ 7:00 PM CDT — FREE Virtual Link Here!

Of interest? You can join virtually.

———- Forwarded message ———

From: Atiera Lauren Coleman <colemana@beloit.edu>

Date: Wed, Sep 8, 2021 at 3:10 PM

Subject: [EVENT] Ousley Residency: All Black Lives Matter: Black Immigrants and the Immigrants’ Rights Movement

To: <facstaff@lists.beloit.edu>

Ousley Residency Keynote Speaker

Denea Joseph

Friday, September 17, 7:00 PM – In-person & Virtual – (Add to Google Calendar)

BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice

The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.

pastedGraphic.png

Event Details

Date: Friday, September 17, 2021

Time: 7:00 PM -8:30 PM

How to attend

In-person – Weissberg Auditorium – Powerhouse

Virtual – Join Zoom Meeting  https://beloit.zoom.us/j/81172664933

— 

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

This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.

The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.

Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!

For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.

From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!

🇺🇸Due Process Forever!

PWS

09-09-21

Related posts:

  1. 👹🎃HALLOWEEN HORROR 🏴‍☠️☠️🤮⚰️👎🏻REICHSREPORT: GRUPPENFUHRER MILLER REVEALS “REICHSPLAN” FOR EXTERMINATION OF IMMIGRATION, ASYLUM, REFUGE BY EXECUTIVE DECREE!  — “The Final Solution??”  — Parents, Protect Your Kids, Families, & Your Country From This Grotesque Un-American Monster!
  2. 🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!
  3. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!
  4. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”

⚔️🛡⚖️🗽👨🏻‍⚖️🧑🏽‍⚖️🇺🇸 ROUND TABLE AGAIN STEPS UP @ SUPREMES — Patel v. Garland: Issue = Judicial Review Of EOIR’s Non-Discretionary Decisions!

Knightess
Knightess of the Round Table

Here’s our amicus brief drafted by the pro bono “All-Star Team” of Richard W. Mark, Amer S. Ahmed, & Chris Jones @ Gibson, Dunn & Crutcher, LLP, NY:

1419000-1419434-20210907134938198_patel amicus brief

Our effort was featured in an article by Jennifer Doherty at Law360 for those with Law360 access.

More coverage here from Dan Kowalski over at LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/supreme-court-amicus-briefs-filed-in-patel-v-garland

“Due Process Forever!”  Hmmm, where have I herd THAT before? Thanks, Dan, for all you do for the NDPA!

The American Immigration Council, the National Immigration Alliance, and the Law Professors, all representing a number of other organizations, also filed in behalf of the “good guys, truth, justice, and the American way,” in this case. The respondents are expertly represented by my friend and legendary immigration advocate Ira J. Kurzban, Esquire, of Kurzban Kurzban Tetzeli and Pratt PA.

Ira Kurzban ESQUIRE
Ira Kurzban ESQUIRE
Legendary American Immigration Lawyer

One could not imagine a group MORE in need of thorough, critical, independent Article III judicial review of its decisions than today’s dysfunctional EOIR! There, potentially fatal errors have been “institutionalized” and even “normalized” as just another “unavoidable” consequence of the anti-immigrant, “haste makes waste,” “culture” that constantly places churning out removal orders above due process, fundamental fairness, and best practices!

Ironically, doubling the number of Immigration Judges, eliminating expertise as the main qualification in judicial selections, and forcing yet more “gimmicks” down their throats has actually nearly tripled the case backlog to an astounding 1.4 million cases, without producing any quantifiable benefit for anyone!

Obviously, it’s high time for Garland to “reinvent” EOIR with progressive experts, many with private sector Immigration Court experience, as judges and leaders at both the appellate and the trial level! Who knows what wonders might result from an emphasis on quality, humanity, and getting decisions correct in the first instance? Progressives are used to creatively solving difficult problems without stepping on anyone’s rights or diminishing anyone’s humanity! Those skills are in disturbingly short supply at today’s failed and failing EOIR! And, they aren’t exactly DOJ’s “long suit,” either. 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

🇺🇸 Due Process Forever! 

PWS

09-08-21

Related posts:

  1. 🆘🤮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! 🏴‍☠️
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. 😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️

🤮👎🏽GREGG ABBOTT IS A MISOGYNIST MORON, A RACST VOTE SUPPRESSOR, & OTHER STUFF WE ALREADY KNEW FROM BESS LIVIN @ VANITY FAIR!

Bess Levin
Bess Levin
Politics & Finance Writer
Vanity Fair

Levin Report: Dumbass Texas Governor Claims No-Exceptions Abortion Law Is Fine Because He’s Going to “Eliminate” Rape
View this email in your browser
If you’re a person who believes it’s literally no one’s business who gets an abortion other than that of the pregnant individual undergoing the procedure, you’ve likely been incandescent with rage since the Supreme Court’s conservative majority decided to allow Texas to proceed with an insane law that prohibits terminating pregnancies after six weeks, with no exceptions for rape or incest. That anger likely stems from not just the law itself but having to listen to the chorus of dumbass voices who’ve come out backing Texas for effectively banning people from obtaining an abortion, from Tucker Carlson, who opined that the law shows “democracy does still exist,” to California gubernatorial candidate Caitlyn Jenner, who ironically commented that she supports Texas’s right to choose its own laws.

Of course, another one of those voices is the Lone Star state governor Greg Abbott, who signed the bill into law in May, saying at the time, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” and that the Texas Legislature “worked together on a bipartisan basis to pass a bill that…ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.” (That both sides of the aisle supported the bill would be news to Texas Democrats, as just a single one of them voted for it.)

Asked on Tuesday why his state felt the need to “force a rape or incest victim to carry a pregnancy to term,” Abbott responded like only a person who really, really hates women can, claiming, “It doesn’t require that at all.” He added: “Because obviously it provides at least six weeks for a person to be able to get an abortion, so for one it doesn’t [require] that. That said, however, let’s make something very clear. Rape is a crime and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”

pastedGraphic.png

There’s a lot to unpack here, so let’s start with the fact that Abbott is claiming that because the law allows for abortion up to six weeks, it’s not forcing anyone to do anything. As doctors, people who’ve been pregnant before, and people who’ve bothered to read a book on the subject before crafting legislation on it have noted, by the time a person misses her first period, she’s already roughly four weeks pregnant. That means that under Texas law, someone would have no more than two weeks, not six, to determine she’s pregnant and decide whether or not to get an abortion. Even in the case of people who are actively trying to get pregnant, that window can narrow even further for numerous reasons including if they have irregular cycles. Usually, then, one would make an appointment with a doctor to confirm the pregnancy, and as Abbott may or may not know, healthcare in America is not the greatest, so she may not be able to be seen for several weeks. And that hugely generous two weeks is not only a joke for many people actively trying to have a child, but for the majority of people who are not. “It is extremely possible and very common for people to get to the six-week mark and not know they are pregnant,” Jennifer Villavicencio, M.D., lead for equity transformation at the American College of Obstetricians and Gynecologists, told The New York Times. In other words, Abbott should fuck all the way off with his “obviously it provides at least six weeks for a person to be able to get an abortion.”

Then there’s the hilarious remark that he’s going to eliminate rape in Texas, so not allowing individuals to terminate pregnancies that result from heinous crimes is a moot point. Really, Abbott is going to make Texas rape-free? If he had that power, why didn’t he do it prior to enacting this law? The victims of the 14,824 reported rapes in his state in 2019, when he was four years into his first term, would probably love to know! (For those of you keeping up at home, that figure made Texas the No. 1 state for rape that year.)

Of course, Abbott is far from the first politician to say something ridiculously idiotic about abortion and rape. In fact, he joins a long line of assholes who’ve smugly offered their moronic two cents on the matter, an illustrious group that includes:

  • The Ohio state legislature, which introduced a bill in 2019 requiring doctors to “reimplant an ectopic pregnancy” into the uterus, or face charges of “abortion murder,” despite the fact that such a procedure is medically impossible;
  • Former Texas state representative Jodie Laubenberg, who claimed while in office that rape victims don’t need access to legal abortion, because they can get “cleaned out” with rape kits, which obviously is not at all how rape kits work;
  • Representative Michael Burgess, who somehow obtained a medical degree in 1977, and declared that male fetuses masturbate in utero—naturally, there is no evidence of this—, so abortions shouldn’t be allowed;
  • Former North Carolina state representative Henry Aldridge, who once said, “The facts show that people who are raped—who are truly raped—the juices don’t flow, the body functions don’t work, and they don’t get pregnant. Medical authorities agree that this is a rarity, if ever.” (Medical authorities do not agree with this);
  • Former congressman Todd Akin, who boldly declared on the campaign trail: “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”

Welcome to the club, Greg! Can’t wait to hear you parse the nuances of putting $10,000 bounties on the heads of individuals trying to help people escape your barbaric law.

 

In other Abbott news…

When he’s not signing and defending disgraceful abortion bills, he’s disenfranchising millions of his constituents. Per Bloomberg:

Greg Abbott on Tuesday signed one of the nation’s most aggressive laws curbing access to the ballot, joining a wave of such restrictions enacted after former President Donald Trump’s false claim that the 2020 election was stolen. The legislature passed the measure last month after an exodus from the state by Democratic lawmakers during the first of two special sessions. After the walkout sputtered, Republican lawmakers passed the bill without delay.

Republicans have spent months raising doubts about the 2020 election, which experts say was one of the nation’s most secure. Now, supporters of new state laws say too many voters have lost faith in voting systems, and must be reassured.

“We must have trust and confidence in our elections,” Abbott said at a signing ceremony in Tyler, Texas. “The bill that I’m about to sign helps to achieve that goal. It ensures that every eligible voter will have the opportunity to vote.” Of course, that’s an interesting way to describe a law that makes it harder to vote, by, among other things, ending drive-thru voting, limiting mail-in voting, and endowing partisan poll watchers with more power. In a tweet, the American Civil Liberties Union wrote “This law is unconstitutional and anti-democratic. Texas—we’ll see you in court. Again.” Beto O’Rourke, the former Democratic U.S. representative from El Paso, wrote in a statement: “Governor Abbott is restricting the freedom to vote for millions of Texans. Instead of working on issues that actually matter, like protecting school kids from Covid or fixing our failing electrical grid, Abbott is focused on rigging our elections and implementing extreme, right-wing policies.”

. . . .

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

You can check out the rest of the always lively and entertaining “Levin Report” at the above link. Like their lost idol, Abbott & DeSantis are plumbing the absolute bottom of American politics and actually killing and irreparably harming their “constituents” as they do it. Undoubtedly, that will make them “heroes” in today’s existentially dangerous “anti-heroic, anti-democracy” GOP!

PWS

09-08-21

 

Related posts:

  1. ANNE APPLEBAUM @ THE ATLANTIC: “History Will Judge the Complicit: Why have Republican leaders abandoned their principles in support of an immoral and dangerous president?” ☠️👎🏻
  2. 🏴‍☠️☠️🤮⚖️⚰️👎🏻KAKISTOCRACY WATCH: BILLY THE BIGOT BLOWS BIGTIME BS AT CONGRESS: Laura Coates @ CNN With Analysis Of Billy’s Opening Statement Liefest & Stream Of Racist Tropes! — With This Trump Toady As Chief Lawyer, & Feckless Courts & Legislators, The U.S. Legal System Is Functionally Dead ☠️⚰️
  3. 👹🎃HALLOWEEN HORROR 🏴‍☠️☠️🤮⚰️👎🏻REICHSREPORT: GRUPPENFUHRER MILLER REVEALS “REICHSPLAN” FOR EXTERMINATION OF IMMIGRATION, ASYLUM, REFUGE BY EXECUTIVE DECREE!  — “The Final Solution??”  — Parents, Protect Your Kids, Families, & Your Country From This Grotesque Un-American Monster!
  4. 🤮NO PEACE ON EARTH GOODWILL TOWARD MEN (WOMEN, OR ESPECIALLY CHILDREN) FROM REGIME OF “BAD SANTAS” 🦹🏿‍♂️🎅🏻— Illegally Separated Families Continue To Suffer Irreparable Trauma, 😰 Volunteer Groups 😇🗽⚖️ Left To Pick Up Pieces — A Reminder That Defeated Regime Has Mocked, Disparaged, & Trashed Christ’s Values & Assaulted Humanity Over Four Christmases!🏴‍☠️🤮☠️⚰️👎🏻