"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
TRAC: The largest segment where age was recorded, some 32,691, were children from zero to four years of age. This represents 12 percent of cases received this fiscal year, or a little less than one out of every eight.
Reuters: DHS in a notice published in the Federal Register said the “expedited removal” process is best focused on people who recently entered the U.S. and remain in close proximity to the border, rather than those targeted by Trump’s sweeping 2019 expansion, who have been in the country longer and developed ties to their communities.
Watchdog recommends relocation of detainees from ICE facility, citing unsanitary conditions and staff shortages CBS: The Department of Homeland Security Office of Inspector General (OIG) issued a damning report on Friday documenting unsanitary conditions, staff shortages and security lapses at ICE’s Torrance County Detention Center in New Mexico. The OIG found the conditions so unsafe that it took the highly unusual step of urging ICE to immediately remove all persons detained at the facility. ICE is refusing to comply with this recommendation and has contested the integrity of the OIG’s investigation.
AP: Faced with the likelihood of eventually reopening its southern border to asylum seekers, the United States government is urging allies in Latin America to shore up immigration controls and expand their own asylum programs.
AP: In 2019, Jackson temporarily blocked the Trump administration’s plan to expand fast-track deportations of people in the country illegally, no matter where they are arrested.
Politico: When it comes to immigration, Durbin said, “I don’t want to hear the word reconciliation,” referring to the budgetary rules that can allow for the Senate to sidestep a filibuster. “That holds up false hope. … The question is: is there anything we can do on the subject of immigration that can win 60 votes in the Senate? We’re going to test that.”
WaPo: The towers use thermal imaging, cameras and radar to feed an artificial intelligence system that can determine whether a moving object is an animal, vehicle or person, and beam its location coordinates to U.S. Border Patrol agents.
BIA: Larceny in the third degree under section 53a-124(a) of the Connecticut General Statutes is not a theft offense aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because it incorporates by reference a definition of “larceny” under section 53a-119 of the Connecticut General Statutes that is overbroad and indivisible with respect to the generic definition of a theft offense. Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), and Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), not followed.
SCOTUSblog: Biden v. Texas (April 26): Whether the Department of Homeland Security must continue to enforce the Migrant Protection Protocols, a policy begun by President Donald Trump that requires asylum seekers at the southern border to stay in Mexico while awaiting a hearing in U.S. immigration court.
Law360: Foreigners locked out of the U.S. due to former President Donald Trump’s now-defunct travel bans will get a new chance to fight their case, after a California federal judge reopened two lawsuits over the policy on Tuesday.
Law360: A recent HIV diagnosis alone does not put a Mexican national at greater risk of state-sanctioned violence if he’s returned home, the Fifth Circuit ruled Monday in a unanimous published opinion denying the man’s asylum bid.
LexisNexis: Because the BIA erred in concluding its affirmance of the IJ’s adverse credibility determination effectively disposed of Thraiyappah’s pattern-or-practice claim for CAT protection based on his Tamil ethnicity, we Grant the petition, Vacate in part and Remand to the BIA.
Law360: A man facing deportation from the U.S. for burglarizing an empty Florida property got another chance to challenge his removal after the Eleventh Circuit questioned a finding by immigration judges that his crime constituted “moral turpitude.”
Law360: The Massachusetts chapter of the American Civil Liberties Union sued U.S. Immigration and Customs Enforcement Wednesday seeking records it says will show whether the Biden administration followed through on a promise to reform immigration enforcement policies.
AILA: USCIS stated that following the February 7, 2022, court decision in Asylumworks v. Mayorkas, USCIS must process all initial EAD applications from asylum applicants within 30 days. Given certain conditions regarding Form I-765, some applicants may be considered Rosario class members.
AILA: Advance copy of DHS notice rescinding the July 23, 2019, notice Designating Aliens for Expedited Removal, which expanded the application of expedited removal procedures. The notice will be published in the Federal Register on 3/21/22 and will be effective on that date.
AILA: Secretary of Homeland Security Mayorkas announced the designation of Afghanistan for Temporary Protected Status (TPS) for 18 months. The designation will take effect upon publication of a forthcoming Federal Register notice, which will also include instructions for applying for TPS and an EAD.
AILA: The Attorney General issued a memo to heads of executive departments and agencies with guidelines for the fair and effective administration of the Freedom of Information Act (FOIA). The memo includes guidelines for removing barriers to access and reducing FOIA request backlogs, among other things.
AILA: DOS states that U.S. citizens physically present overseas with their Afghan, Ethiopian, and Ukrainian immediate family members can request to locally file a Form I-130 petition at the nearest U.S. embassy or consulate that processes immigrant visas. DOS specifies who citizens can file for.
AILA: DHS has automatically extended the validity of certain EADs with a Category Code of A12 or C19 issued under TPS for Somalia through September 12, 2022. Information on updating expiration dates and reverification is available.
AILA: ICE issued directive 10036.2, which states that ICE personnel are generally prohibited from using or disclosing information protected by Section 1367 to anyone other than DHS or DOJ employees. This includes information on applicants for T & U visas, continued presence, or VAWA based benefits.
AILA: USCIS temporary final rule extending the expiration date of the temporary final rule on interpreters at asylum interviews published at 85 FR 59655, which was set to expire on 3/16/22, through 3/16/23. (87 FR 14757, 3/16/22)
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Many congrats to Attorney Shernette G. Noyes of Stratford, CT for doing the near impossible: Notching a well-deserved win for an immigrant in a “crimmigration” case before one of the toughest BIA panels this side of Dodge City!
“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”
“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”
Here’s my favorite quote from Judge Torresen’s decision inDa Garcia v. Garland:
Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.
Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.
Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.
So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.
Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.
At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.
I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.
There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.
Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!
From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”
For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.
The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!
Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:
Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.
“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”
“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.
Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog!It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.
This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.
It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.
