"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.
Reuters: The 9th U.S. Circuit Court of Appeals in a 2-1 ruling said the preliminary injunction issued last year improperly placed ICE’s entire network of detention facilities under the direction of a single federal judge, an error because the plaintiffs failed to show systemic nationwide shortfalls in detainee health protections.
NPR: The Border Patrol recorded nearly 1.7 million migrant apprehensions at the Southern border over the past year — the highest number ever, eclipsing the record set more than two decades ago. But that doesn’t mean it’s the biggest number of individual migrants who’ve illegally crossed from Mexico into the U.S. in a single year. In fact, it’s probably not even close. See also Tired of waiting for asylum in southern Mexico, thousands of migrants march north.
BuzzFeed: The report offers a rare window into the behind-the-scenes dysfunction and confusion surrounding the so-called Remain in Mexico program, which is set to come back.
NYT: More than 160 reports, obtained by Human Rights Watch, reveal details of mistreatment that asylum seekers described experiencing from border officials and while in U.S. custody.
WaPo: A U.S. Customs and Border Protection discipline board found that 60 agents “committed misconduct” by sharing violent and obscene posts in secret Facebook groups but fired only two — far fewer than an internal discipline board had recommended, according to a House Oversight and Reform Committee report released Monday.
Intercept: An internal review of Efraín Romero de la Rosa’s death in ICE custody found almost two dozen policy violations during his stint in detention.
Law360: President Joe Biden hasn’t shied away from using controversial technologies for immigration enforcement, raising concerns that his predecessor’s pet project to build a border wall is being replaced with a “virtual wall” rife with privacy and civil liberties problems.
Newsweek: SLS was previously assigned to build the border wall under the Donald Trump administration, but now it is expected to work with the health department to also offer migrants prescription services and transportation for “safe onward travel.”
Law360: The U.S. Supreme Court on Monday vacated a Third Circuit ruling in a deportation case that barred a Yemeni man from acquiring citizenship through his naturalized but divorced parents, after the Biden administration said the lower court overlooked precedent.
Law360: Advocates of drastically reduced immigration urged the U.S. Supreme Court on Thursday to overturn decisions in the Third and Ninth circuits that said migrants who have been detained more than six months should get a bond review hearing.
Law360: A coalition of conservationists and ranchers has asked the U.S. Supreme Court to review a Ninth Circuit ruling that the federal government need not subject immigration policies to environmental review, saying it created an “impossible” standard for challenging immigration programs.
Law360: The First Circuit revived a Honduran man’s bid for protection from a deportation order, ruling that immigration authorities saw discrepancies in his testimony that he faced persecution as an HIV-positive gay man where there were none.
AILA: The court held that the petitioners’ convictions under Connecticut General Statute §21a-277(a) were controlled substance offenses and aggravated felony drug trafficking crimes, and that the jurisdictional holding of Banegas Gomez v. Barr remained good law. (Chery v. Garland, 10/15/21)
AILA: Granting the petition for review and remanding, the court held that while the BIA was correct in finding that the petitioner had not suffered political persecution in China, its reasons for rejecting religious persecution were flawed. (Liang v. Att’y Gen., 10/12/21)
AILA: The court abrogated Matter of S-O-G- & F-D-B-, holding that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA the general power to terminate removal proceedings. (Chavez Gonzalez v. Garland, 10/20/21)
Law360: The Fifth Circuit on Wednesday asked the federal government to respond to Texas and Louisiana’s petition for the full appellate court to review a panel’s decision allowing the Biden administration’s policy curbing immigration enforcement operations to remain in place.
Law360: The Fifth Circuit refused to freeze the Biden administration’s appeal of a lower court order stopping the federal government from approving new applications under the Deferred Action for Childhood Arrivals program while it inks a replacement rule.
LexisNexis: Fraihat v. ICE Maj. – “COVID-19 presents inherent challenges in institutional settings, and it has without question imposed greater risks on persons in custody. But plaintiffs had to demonstrate considerably more than that to warrant the extraordinary, system-wide relief that they sought.
AILA: The U.S. District Court for the District of Columbia ordered the defendants to commence processing the 9,905 DV-2020 visas as soon as is feasible, and to conclude such processing no later than the end of FY2022, or September 30, 2022. (Gomez, et al. v. Biden, et al., 10/13/21)
Law360: The federal government urged the D.C. Circuit to erase a lower court’s injunction blocking its use of a public health law to expel migrant families, arguing that the lower court interpreted its powers under the authority too narrowly.
Law360: A D.C. federal judge ordered U.S. Customs and Border Protection on Monday to release previously withheld documents related to the government’s 2017 attempt to unmask a Trump administration critic’s Twitter account, while scolding the agency for its “lackluster efforts” to comply with Freedom of Information Act requirements.
Law360: A Michigan federal judge rejected two brothers’ claims that their due process and religious freedom rights were violated when they were denied travel authorization to Mexico for their grandfather’s funeral, saying that they had no recourse against the officials involved.
AILA: DOJ provided a status update to the court, which states that the BIA and NYLAG are in discussions regarding the possibility of posting certain unpublished BIA decisions online, both prospectively and retrospectively. (NYLAG v. BIA, 10/15/21)
Law360: The Pentagon denied foreign-born soldiers’ contention that it was flouting an injunction to process their citizenship requests, telling a Washington, D.C., court that it was complying and close to doubling the number of requests that are processed annually.
AILA: In balancing respondent’s desirability as a permanent resident with social and humane considerations, the IJ found that respondent was entitled to a waiver of removability for fraud or misrepresentation under INA §237(a)(1)(H). Courtesy of Christopher Helt. (Matter of Mohammed, 9/13/21)
AILA: CBP notification of the continuation of travel restrictions limiting non-essential travel from Mexico into the U.S. at land ports of entry through 1/21/22, while also announcing the intent to lift these restrictions for individuals fully vaccinated against COVID-19. (86 FR 58216, 10/21/21)
AILA: DHS notice establishing procedures for individuals covered by Deferred Enforced Departure (DED) for Hong Kong to apply for employment authorization through 2/5/23. (86 FR 58296, 10/21/21)
Suffolk County DA: Newly created Immigrant Affairs unit. The Chief of the unit is Leslie Anderson and Deputy Chief is Imran Ahmed. Their hotline is 631-852-2950 and the dedicated email address is immigrantaffairsDA@suffolkcountyny.gov.
Sadly, more than eight months in, the Biden Administration lacks:
A coherent vision for the border;
A cogent plan to restore the refugee system and the legal asylum system (the poorly conceived “proposed asylum regs” — mostly opposed by our Round Table and other asylum experts — don’t make it);
The tough, courageous, well-informed leadership to make the necessary border enforcement and Immigration Court reforms and to stand up to the entirely predictable, well-organized nativist opposition, led by Stephen “Gauleiter” Miller and his accomplices.
Not a “recipe for success,” in my view!
Another item worthy of note: The pending settlement between NYLAG and EOIR on making unpublished decisions readily accessible to the public could open new avenues for advocates.
BIA panel decisions favorable to respondents are almost never published as precedents by an organization where judicial independence and due process have long taken a back seat to “job preservation” within the DOJ. Politicos @ DOJ are normally much more interested in supporting enforcement and “false deterrence” goals than with enhancing due process, enforcing immigrants’ rights, and achieving racial justice when it comes to immigrants.
“Willian Rubio Barahona petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States. We hold that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2). Because no such finding was made below, we reverse and remand for further proceedings.”
“Plaintiff-Appellant New York Legal Assistance Group (“NYLAG”) seeks access to non-precedential “unpublished opinions” issued by Defendant-Appellee the Board of Immigration Appeals (“BIA”) in immigration cases. NYLAG wants to consult the opinions, which are not routinely made available to the public, to aid in its representation of low-income clients in removal and asylum proceedings. NYLAG asserts that the BIA’s failure to make the opinions publicly available violates the agency’s affirmative obligation under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(2), to “make available for public inspection in an electronic format final opinions . . . [and] orders, made in the adjudication of cases.” In this action under FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), which authorizes district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,” NYLAG seeks an order requiring the BIA to make available to the public all unpublished opinions issued since November 1, 1996, as well as future unpublished opinions. The United States District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed the case, concluding that FOIA’s remedial provision does not authorize district courts to order agencies to make records publicly available. We conclude that FOIA’s remedial provision authorizes the relief NYLAG seeks. FOIA’s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents publicly available. We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.”
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Why would the BIA even want to withhold unpublished decisions or bar someone from asylum based on less than probable cause? Why would anyone want to further impede the already difficult task of representing the most vulnerable in Immigration Court? What if the resources wasted on litigation to diminish due process were “repurposed” to working with NYLAG and other pro bono all-stars to achieve universal representation? Much of what EOIR does these days makes little or no sense unless looked at from a White Nationalist nativist perspective.
When will it end? The Biden Administration proclaimed a “new day” on immigration and human rights issues. But, you sure can’t tell from the junk continuing to come out of the BIA and being defended in court by OIL. No matter how welcome the change in tone from the President is, it requires concerted action and getting better judges, administrators, and litigators in place to actually change policies, produce fairer results, and save lives!
Congrats to Allison Heimes and the good folks at Fair Trials Americas.
Also, congrats to my former Georgetown Law superstar, Arlington Intern, & NY JLC, Elizabeth Gibson (“The Gibson Report”) and her colleagues at the NY Legal Assistance Group!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
🇺🇸🗽⚖️Due Process Forever! We need “a little less talk and a lot more action!”
