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Lory D. Rosenberg on Appeal Matters


  1. Sock it to me, Supreme Court![1]

    What's up with the categorical approach?

    What’s up with the Solicitor General’s insistence that -- even after Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) – the categorical approach, as clearly articulated by the Supreme Court, is not to be followed in construing a state drug paraphernalia conviction? Historically, and as undeniably revitalized by the Court’s 2013 opinions in Moncrieffe v. Holder, supra. and Descamps v. United States, 133 S.Ct. 2276, 2285 (2013), the controlling premise that in construing a conviction, it “is not what the offender actually did, but the crime of which he has been convicted,” enjoys wide acceptance.

    The decision in Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), issued on October 28, 2013 by the United States Court of Appeals for the Eighth Circuit, stands in stark contrast to the Supreme Court’s recent clarifications in Moncrieffe and Descamps. Rather, the Eighth Circuit did its best to sidestep the categorical approach altogether and diverted a good portion of its decision to the “special circumstances” exception to the categorical approach. Cf. Nijahwan v. Holder, 557 U.S. 29, (2009). Relying onpre-Moncrieffe BIA precedent, Matter of Martinez Espinoza, 25 I. & N. Dec. 118 (BIA 2009), the Eighth Circuit simply deferred to the BIA’s pre-Moncrieffe dismissal of Mellouli’s appeal, and held that Mellouli's “conviction for possession of drug paraphernalia involves drug trade in general and, thus, is covered under [8 U.S.C. § 1227(a)(2)(B)(i).”

    This is a legally untenable position. Yet, it is the one that the Solicitor General will be arguing on Wednesday, January 14, 2015 when Mellouli’s petition is heard by the Supreme Court.

    Enough with the “crime as defined,” what actually happened?

    After Mr. Mellouli was arrested for DUI, deputies at the detention center discovered in Mellouli’s sock, four orange tablets bearing the inscription, “M Aphet Salts 30 mg.” The drug was Adderall, which is listed on both the Kansas and federal controlled substance schedules, and Mellouli had 4 tablets of it hidden in his sock when he was arrested.

    Mellouli was charged with a level 6 felony of “trafficking in contraband in a jail,” but he did not plead guilty to this offense. The offense to which he actually pled guilty was misdemeanor possession of drug paraphernalia, in violation of Kan. Stat. Ann. § 21–36a09(b)(recodified at § 21–5709(b)), as charged in an amended complaint. The amended complaint did not identify the controlled substance Mellouli stored in his sock, which was deemed to be the “paraphernalia.”

    Incidentally, if we are so interested in what Mr. Mellouli actually did, we should ask who puts 4 Adderall pills in his sock, gets drunk and then drives drunk in an effort to get arrested so he can engage in drug trafficking in jail? Plainly, Mellouli did not set out to engage in drug trafficking, as he initially was charged; what Mellouli actually did was to possess 4 Adderall tablets. If the categorical approach sometimes seems convoluted, just think about the criminal charges routinely lodged by law enforcement in relation to what happened. So much for dealing in actualities.

    Ill-advised interpretations cannot stand

    The crux of the matter is section 237(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(B)(i), which lists as deportable and subject to removal,

    Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable. Id. (emphasis added).

    Mellouli’s position consistently has been that he is not removable under § 1227(a)(2)(B)(i) because the record of conviction does not identify the substance underlying his state paraphernalia conviction, making it impossible for the government to establish that the conviction is one relating to a controlled substance as defined in 21 U.S.C. § 802 As in Matter of Paulus, 11 I. & N. Dec. 274, 276 (BIA 1965), where the BIA concluded that Paulus was not deportable because his conviction could have involved a substance that was not a narcotic drug under federal laws, the substance involved in Mellouli’s paraphernalia conviction may not be a controlled substance under federal laws.

    The Supreme Court has declared that the role of a court in determining the nature of a conviction for purposes of deciding whether it amounts to an immigration violation, is to construe the statute of conviction with respect to “what the state conviction necessarily involved.” Moncrieffe v. Holder, supra. This is a technical exercise that relies on the “categorical approach,” in which a court looks first to the statutory language in the statute of conviction to determine the minimum conduct that would support a conviction. Only “when a statute lists multiple, alternative elements, and so effectively creates ‘several different crimes,’” should a court look beyond the statute to the record of conviction. Descamps v. United States, 133 S.Ct. at 2285, quoting Nijahwan v. Holder, supra.

    The ground of deportability involving offenses “relating-to” a federal controlled substance calls for differentiating those state controlled substance convictions that are less serious than those defined in 21 U.S.C. section 802, or that may not come within the precise language of the statute. When the record of conviction contains no information indicating the crime of which the offender was convicted, there is no basis on which to conclude that it was one relating to a controlled substance.

    Timing may be everything

    Timing should make a difference in assessing Mr. Mellouli’s arguments, as well as the disposition of his appeal to the BIA. In particular, the BIA decision under review by the Eighth Circuit was issued prior to the Supreme Court’s clarifying discussion of the categorical approach in Moncrieffe v. Holder, supra. The Supreme Court’s decisive opinion in Moncrieffe should have given the Eighth Circuit pause in reviewing Mellouli’s petition in 2013, but there is no indication that it did.

    Rather than following the categorical approach outlined in Moncrieffe, the Eighth Circuit ruled that it would adopt BIA’s categorical reading of the “relating to” provision in § 1227(a)(2)(B)(i). The Eighth Circuit thus adopted the BIA’s rejection of the well-established premise that a drug paraphernalia conviction is not “relating to” a federal controlled substance within the meaning of § 1227(a)(2)(B)(i) unless the conviction identifies a particular controlled substance with which the paraphernalia was used. Moreover, the Eighth Circuit rejected Mellouli’s Paulus argument, contriving an unfounded rationale to explain why the BIA failed to follow or distinguish Paulus in Mellouli’s appeal. The circuit court’s deference to the BIA’s reading of the statute is inappropriate when the BIA’s interpretation on its face fails to give meaning to the careful distinctions drawn by Congress in defining federal controlled substance offenses.

    Clinging to 2009 agency decisions that misconstrue the statutory language in adjudicating Mellouli’s petition for review, is ill-advised. Ignoring the categorical approach in the aftermath of the Supreme Court’s 2013 Moncrieffe and Descamps opinions cannot be justified.

    Enough already

    Under the rubric of adhering to the reasonable interpretation of the BIA in Matter of Martinez Espinoza, supra, the circuit court endorsed an overbroad approach that encompasses all crimes involving paraphernalia as being “related to” a federal controlled substance without regard to whether it is so classified. Id. (“we have affirmed the BIA's categorical determination that Mellouli's drug paraphernalia conviction was within § 1227(a)(2)(B)(i), without regard to whether the paraphernalia was used in connection with a federally scheduled drug.”)

    If there was any legitimate basis, prior to 2013, to question the applicability of the categorical approach, it no longer exists. The Supreme Court’s emphasis on the minimum conduct necessary to support a conviction being dispositive of its nature has laid to rest any argument limiting the applicability of the categorical approach to cases such as Mr. Mellouli’s, Moncrieffe v Holder, supra. The minimum conduct necessary cannot be determined by abandoning the categorical approach and embracing an unauthorized, catch-all “drug trade” classification. Notwithstanding the BIA’s ill-conceived 2009 decision, the categorical approach may not be ignored when the question is whether a conviction relates to or does not relate to a federal controlled substance as defined by 8 U.S.C. § 1227(a)(2)(B)(i).

    Indeed, as Jennifer Lee Koh states so succinctly: “[t]he Eighth Circuit’s exasperation with the categorical approach does not justify its flawed interpretation of the law.” Koh, J, Rethinking Removability for Possession of Drug Paraphernalia (aka a sock), Let's hope the Supreme Court agrees.

    [1]A Nixon-era, late 60’s expression used in different contexts to mean give it to me, let me have it, e.g. Goldie Hawn would say "Sock it to me," on the TV show, Rowan and Martin's Laugh-inThe Isely Brothers sang, "I can't tell you who to sock it to." Urban Dictionary, One of the lines in the Otis Redding song “Respect” as sung by Aretha Franklin who added the line, “Sock it to me, sock it to me” to the song.

    (c) 2015. All rights reserved. Lory D. Rosenberg

    Updated 01-14-2015 at 06:20 PM by Lrosenberg

  2. Too Little, Too Late

    The Obama Administration's September 30, 2014 announcement that refugee protection for certain minors fleeing Honduras, El Salvador, and Guatemala will be provided via in-country processing may be a welcome acknowledgement that these Central American countries belong on the United States refugee resettlement list, but it will do little for most of today's refugees.

    In-country (as opposed to third-country) processing is not a preferred method for adjudicating refugee status. This is particularly true when the "persecutors" are playing quasi-governmental roles, and/or are insurgents who have invaded or taken over the government.

    When I was in Haiti in 1993 and observed the start of U.S. in-country processing in that country, applicants were required to walk into the downtown Port au Prince building in broad daylight for their appointments with U.S. officials. Inside the offices, multiple interviews were conducted simultaneously in a large conference room. To say the least, the process lacked confidentiality protections, a serious flaw in an environment riddled with spies and informants (and gangs, and paid-off police).

    Although recognition of the need to allocate refugee resettlement numbers to Central American countries is important, it will not end flight to the United States from conditions of persecution. Moreover, contrary to what many appear to believe, coming to the US and seeking asylum upon arrival is not the "wrong way," as opposed to the "right way" of applying through an in-country process. Our statute expressly contemplates that asylum seekers in flight from persecution may arrive at a port of entry or border crossing and apply for asylum. That is consistent with the United Nations Refugee Convention and Protocol, with which the U.S. is expected to be in compliance (and is in compliance, with some exceptions, including the U.S.-added obstacle requiring asylum seekers arriving at our borders to first pass a credible fear test before being allowed to apply for asylum).

    As for the 4,000 refugee slots provided, it is grossly inadequate and ultimately unlikely to benefit more than approximately 250 children. It certainly will not stop children from fleeing to the U.S. and cannot justify their repatriation. To make refugee protection through in-country processing a meaningful alternative to asylum requests at the border, the number would have to be increased dramatically.

    Another flaw is in the apparent requirement that the child must have a "lawful" relative in the United States. The definition to be applied to this relationship requirement is unknown at this time, but is likely to be the accepted “qualifying family member” term applicable to visa petitions and waivers. Although it is understandable that the U.S. is interested in reunifying these children with their families, many of the parents of minors now facing persecution in their home countries entered the U.S. without papers and are not lawfully in the U.S., foreclosing reunification for the vast majority of children, if this requirement is enforced.

    Parents who are lawfully present in the U.S., may have included their child as a derivative on their own immigrant visa application, or petitioned for him/her, so that the small number of refugee spots may be distributed to children of lawful permanent residents holding not-yet-current priority dates after February 2013. While it might be possible to argue for an expansion of the definition of "lawful" to include children of parents who have been granted asylum (asylees), or parents who have TPS, the number of available spots is so small that (unless it is significantly increased) the numbers will be exhausted quickly.

    I support designating as refugees the children who are fleeing the rampant violence, danger, corruption and outright persecution perpetrated by the gang insurgencies in Honduras, El Salvador and Guatemala. Much as I dislike being a naysayer, this gesture is not a panacea for any of it.

    (c). 2014. All rights reserved, Lory D. Rosenberg

    Updated 10-03-2014 at 02:05 PM by Lrosenberg

  3. The Relevance of Outrageous Conditions, Part II

    Part II. No Place for Families

    Day to day egregious detention conditions aside, the IJs very likely have no idea what it is like for a mother and child who are living in a jail rather than at liberty, to appear before the IJ in a trailer rather than in a real courtroom. They can have no idea of what it involves for respondents in “family detention” to prepare their cases for a bond hearing, or a “master calendar” hearing that amounts to the first step in their removal proceedings, or for their ultimate hearing on the merits.

    These mothers are young women, alone in a remote, regimented facility with their children; they do not speak or understand English; they are not free to move around; they have no clothes or possessions of their own; they cannot go to the bathroom without prior permission, even if it means soiling themselves. They are unable to take their sick children to a doctor or hospital. They cannot feed their kids when they are hungry or put them down for a nap when they are tired; they cannot send their kids to school, allow their kids to play, or ask other mothers to babysit while they take a break or meet with their lawyers.

    The level of stress and uncertainty this creates is pervasive and exhausting. Their child or children must be with them at all times. That means their children must “behave” while the their mothers are interviewed by their lawyer, sometimes many times over, concerning the often gruesome details of the violence and danger they face, as well as the abuse and harm they already may have suffered. Sometimes, the danger back home involves threats to kill the very same child or children listening to their mother’s interview or testimony.

    Access to competent counsel at Artesia, once nonexistent, now is by triage, thanks to AILA’s Pro Bono Project, which stepped in and organized immigration lawyers from all over the United States to donate their expertise and compassion to these cases. The mothers are fortunate to have a pro bono lawyer on the ground, even if they must reveal intimate and painful facts about their lives with their children listening. Sometimes, there is no time to assign the mother and her child to a lawyer, or no lawyer is available, and the mother has to be coached at the last minute to represent herself. On a few devastating occasions a mother and child in Artesia did not show up for a scheduled attorney appointment, because overnight, they were taken away by ICE and deported.

    These cases involve sensitive issues and traumatic factors. Often, a mother in detention who needs to reach her out-of-state lawyer by phone to prepare for a hearing or provide information for an application is not allowed to make the call at the appointed time and the lawyer must wait for hours to hear from her client. Many times, a guard interrupts or cuts off the interview after 10 or 15 minutes, standing close to the mother during the call and taking the phone out of her hand. Sometimes, an assigned lawyer must leave Artesia before a case concludes, and another lawyer whom the mother does not know rotates in to take over the case and must rebuild the attorney-client relationship.

    The pro bono volunteers go to great lengths for their clients, working collaboratively both on the ground and out of state, doing whatever needs to be done to present the highest quality, most effective legal representation on behalf of these mothers and children. Several attorneys have worked on their clients’ cases through times of personal family loss and during maternity leave. Many pro bono lawyers have driven hundreds of miles from out of state to return to the facility in order to be present with their clients at the time of their video hearing before the IJ.

    First and foremost for the mothers and their children is their bond hearing, which represents the possibility they may be able to leave Artesia and reside with family or friends while their cases are pending. Release from detention allows a respondent to get needed medical care for herself and her children, place her kids in school, and meet freely with her legal counsel and fully assist in preparing her request for asylum. In contrast, conditions in Artesia deprive the children of needed health care, education, and an environment that nurtures their development, and these conditions deprive the mothers of their dignity, perpetuating the debilitating stress and trauma they already have experienced, and at a minimum, endangering their psychological health and well-being. These conditions are crushing the spirit of mothers and children alike.

    At the appointed time, the mother and children are seated at a table in a trailer semi-converted into a “courtroom.” Often, a uniformed guard walks back and forth across the trailer. Maintaining order.

    The children must sit still and stay quiet during the hearing before the IJ, but sometimes a child is irrepressible and runs around the room, posturing and waving before the video camera. Given the persistent colds, bronchitis and illnesses the children are suffering, sometimes a feverish child crawls up into his mother’s lap and falls asleep in his mother’s arms. If there is an infant, the baby is likely to struggle and fuss or cry during the hearing; the toddlers often become restless, distracting their mothers, who may already be preoccupied with worry.

    There is no one in the trailer “courtroom” other than the mother, her child, and if she has one, her pro bono attorney, sometimes accompanied by another legal volunteer who observes the proceedings and takes notes. The proceedings are conducted by video, in English, with no interpreter to translate the full hearing discourse for the respondent. Only the questions the mother is asked are translated into her native language, and her responses are translated into English.

    The Immigration Judge is not in the trailer, but in a government courtroom in a distant state. He or she is visible only on a small, 20 inch laptop-size television screen that makes him or her appear small and far away. Mothers and their lawyers alike must sit directly in front of the small screen in order to see the IJ. The IJ speaks to the respondent but she cannot understand what he says until an interpreter whom she cannot see repeats the words in Spanish or a dialect she understands. There is no official translation of anything that is said by the ICE attorney who is in the IJ’s courtroom and opposes release on bond, claiming there is a mass migration from Central America.

    It is scary and surrealistic.

    The mothers, once again, must “speak up” with their children present, and testify under oath before the IJ to relate the credible details of the violent events and terrifying fears that motivated their flight, of what happened along the way, of why they pose no danger to the U.S., and of the guarantees they can offer to show that they are not a flight risk. In light of the enforcement policy adopted by the Obama administration and the “no-bond” position taken by ICE, the mother must establish that her flight was motivated by individual circumstances of persecution, and not, as ICE mistakenly claims, due to being part of some sort of migration movement. [1] This is not an ordinary bond hearing.

    Ironically, in these difficult, challenging conditions, mothers in Artesia are winning their asylum cases on the merits. Repeatedly winning. Proving under the law that they have been persecuted on the basis of their social group or political opinion by persons that their countries cannot or will not control. Yet, their success on the merits of their cases has not caused the Obama Administration or ICE to pause and consider the impropriety of their enforcement strategy.

    Instead, the government continues to fast-track these “family” refugee cases and insists that this population remain detained until the last possible moment, when the rule of law absolutely precludes custody because asylum has been granted and appeal waived. Likewise, the IJs have failed to give sufficient weight to the likelihood that many of these mothers will win their asylum cases on the merits, despite it being a relevant bond factor acknowledged in controlling BIA precedent.

    Although Department of Homeland Security (DHS) Deputy Secretary Alejandro Mayorkas claims the department is reviewing its approach and denies that DHS is uniformly opposed to the release of Artesia detainees,[2] the realities indicate otherwise. Despite Majorkas’s contentions, as of September 25, 2014, it appears that ICE has filed appeals to the BIA in every bond redetermination case in which an IJ ordered a bond of less than $25,000.00. These ICE appeals were filed whether or not the mother and her children had posted bond and left the facility or remained detained due to inability to pay. And, the problem with the bonds set by most of the IJs hearing bond cases to date is not that they are too low, but that they are far too high and tantamount to no bond at all.

    As AILA Past President Laura Lichter said succinctly of the detention and bond situation at Artesia, "This is unconscionable.”[3]
    The determination to release these mothers and children on bond is a discretionary one. Certainly, deleterious conditions of confinement warrant consideration by IJs in determining release from custody. Case after case proves that these mothers and children came to the U.S. as refugees, fleeing genuine threats to their lives and safety, and their custody is not authorized either as a punishment or a deterrent to others. Prior recommendations uniformly favor releasing asylum seekers who have established a "credible fear" as these mothers have. The egregious conditions in Artesia combined with the factors invalidating ICE’s mass migration claims militate for sympathy and leniency, for a fair bond hearing, reasonable terms of custody, and a meaningful opportunity to prepare to demonstrate their eligibility for asylum.

    Knowledge is power, they say. Will educating the IJs to the unreasonable deprivations faced by the mothers and children at Artesia and the errors made by ICE empower them to make the right call and err on the side of compassion rather than confinement? Perhaps, as my colleague urges, we need to file a massive exhibit presenting uncontroverted evidence documenting the lasting, adverse personal, psychological, medical, developmental and educational conditions that mothers and their children are experiencing in ICE jails, so that this evidence is a part of every bond hearing and puts this unconscionable situation in proper prospective.

    [1] Declaration of Professor Jonathan Hiskey, Sept.22, 2014, on file with blog author (refuting ICE’s erroneous reliance in support of its detention practices on "Americas Barometer Insights: 2014, Violence and Migration in Central America" ("2014 Americas Barometer Report"),

    [2] See Julia Edwards, In Shift, U.S. Officials Fight Release on Bond of Migrants: Lawyers, Reuters, Sept. 19, 2014.

    [3] Id.

    (c) 2014. All rights reserved. Lory D. Rosenberg

    Updated 10-03-2014 at 02:04 PM by Lrosenberg

  4. The Relevance of Outrageous Conditions: A Blog in Two Parts

    Recently, I engaged in a friendly, late night debate with a dear friend and colleague who is a seasoned immigration lawyer and law professor. It was triggered by the story on the Immigration and Customs Enforcement (ICE) website of a little girl in the Artesia, New Mexico family detention facility, who almost died of a seizure caused by a high fever but was saved by an EMT-trained guard.[1] The government’s self-congratulatory article about its “humanitarian mission” not only overlooked the fact that the facility had failed to provide the child with adequate medical care to treat the fever, but even admitted that the toddler was taken, not to a hospital, but to the dispensary – all that is available to the 500+ mothers and children held at Artesia. It was the final straw.

    After reading this horrifying story and reports of ICE’s neglectful and shameful treatment of the mothers and children they have held without bond for over 3 months in the makeshift trailers encircled by barbed wire, my colleague was livid. Unable to sleep, he emailed me at about 3AM.

    “Immigration Judges should give considerable weight to evidence of these poor conditions. What do you think?” his email read.

    A long-time immigrants’ rights advocate himself, my friend and colleague was wide awake. He queried rhetorically whether the pro bono attorneys representing the detainees through the American Immigration Lawyers Association (AILA) Pro Bono Project should be filing “massive detention conditions evidence” in every bond redetermination case seeking their release from custody. He asserted that the unhealthy, repressive, and family un-friendly conditions in which the mothers and children are detained (glossy public relations videos of the Artesia detention facility notwithstanding), should be a significant factor in an Immigration Judge (IJ)’s analysis whether depriving these moms and kids of their liberty is justified. These conditions of detention, he opined, are a persuasive counterweight to ICE’s misguided contention that continued custody and high, impossible-to-pay bonds will effectively deter others jn Central America from fleeing the pervasive violence, poverty and persecution in their countries.

    I’m sure it was no surprise to him that I was working at that late hour, putting the final touches on a practice advisory for the pro bono volunteers tirelessly representing the mothers and children in Artesia. “I doubt that IJs will find that the Artesia detention conditions, no matter how inhumane or deleterious, are sufficient to overcome the specter touted by ICE, albeit erroneously, of a migration movement posing a national security threat to the U.S.” I skeptically replied by email.

    I told him that I agreed that conditions in Artesia are offensive to international refugee standards that prohibit penalizing individuals who are fleeing persecution and must cross borders in search of surrogate protection from a country such as the United States, which is a signatory to the United Nations Refugee Convention and Protocol. Indeed, I would argue that detaining such a vulnerable population in the miserable and restrictive conditions existing at Artesia violates the provisions of the Refugee Act of 1980, our own domestic statute, which authorizes persons fleeing persecution and threats to their lives and safety to apply for asylum at a U.S. port of entry or land border.

    However, I wrote back cynically, “that humanitarian promise obviously has been abrogated to some extent by the requirement that an asylum seeker must first pass the ‘credible fear test’ to access our asylum system.” That, and the fact that most, if not all, U.S. government officials deny that any aspect of our domestic law is meant to fulfill either the letter or the spirit of the United States’ international humanitarian obligations. Oh well.

    My colleague pressed forward nonetheless, “what about the evidence of conditions?”

    “I haven't reviewed all the specific custody conditions,” I emailed back, and besides, “I‘m not sure that egregious conditions overcome ICE’s objections to release or how an IJ would balance these factors. Clearly, detention itself isolates asylum seekers and handicaps them in seeking legal representation and being able to prepare their cases properly. It even may deter them from hanging in there to pursue relief, especially when they and their kids are so miserable and sick.” Barely awake, I asked, “Is there anecdotal evidence of any IJ decisions that rely on egregious detention conditions to undercut arguments in favor of maintaining custody?” And said good-night.

    But my colleague would not be put off. By the time I returned to my computer the next morning, there was his rejoinder: “I disagree strongly. You are being too legalistic. All factors are relevant. Sympathy goes a long way in cases like this and it is important to make the historical record.”

    Well, I concede that I am being legalistic, I replied, not taking offense. I also agree that as far as I can tell, the IJs have no idea of the actual conditions being endured by these poor mothers and their children. Or by their pro bono counsel, who are trying to provide excellent representation under challenging conditions.

    So exactly what are these conditions anyway?

    Part I. The “Family” Detention Facility

    It’s difficult to capture in a blog, the reality of mothers with one, two or even three children, some of them infants and even new-borns, held captive in jail - yes, the facility is within barbed wire fencing, no visitors allowed, situated in a remote corner of the New Mexico desert, and the mothers and baby inmates alike are monitored 24/7 by uniformed guards. Young mothers and their children who left their homes behind reluctantly and fearfully, to embark on an arduous and terrifying journey. Young women of 22 or maybe 25 or 30, travelling alone through Mexico with their 2 year olds, their 5 years olds, their pre-teens, their babies.

    It’s difficult to capture in words, the reality of young women who have suffered rape, torture, theft, assault, and even worse in their home countries and in the course of their flight to save their own and their childrens’ lives. And it’s equally hard to convey what it’s like to arrive here, exhausted and frightened, to be interviewed by border patrol officers who ask questions, write down responses and ask them to sign, and then to be flown to Artesia, to be told that they will be deported eventually.

    Does anyone really think that these young mothers are audacious enough to have put themselves and their kids at risk in such a dangerous, violent, and unsympathetic world, but for the utmost necessity?

    The mothers arrive scared, confused, and disoriented. They and their children are subject to the commands of strangers in uniforms. The children are often cold, always hungry, chronically sick, and subconsciously terrified, picking up on their own mothers’ fears and tears. The kids have no way of understanding the new rules: that playing with other kids is bad, that crayons can be “contraband,” that feeling hungry or tired is bad, that crying or screaming or running around can get their mothers in trouble. The mothers are constantly surrounded by screaming children and babies (which would drive me stark raving mad), and routinely insulted, ordered around, taunted and called names by the guards. And they can’t do anything about it.

    As reported by the pro bono lawyers who represent them, the mothers and children in Artesia are residing in anything but family friendly conditions. Rather, they are held in jail-like conditions, poorly operated and maintained jail-like conditions. Deborah S. Smith, one attorney who volunteered at Artesia over the summer, reflected upon reading the September 19th ICE article, “ I am appalled that ICE can refer to Artesia as a ‘humanitarian mission,’ and allege that it has an ‘open environment.’ Nothing in or about Artesia is ‘open’ or ‘humanitarian.’”[2]

    “Everything is controlled by the guards, both for the detainees and the legal volunteers. Everything. Including what we eat, where we walk, when we walk, when we come, when we go, where we sit, and on and on. When I was there, the playroom was never used . . . at that point it could only be used by a child whose mother was in a hearing or interview. A guard was the daycare provider. What kind of mother is going to leave her young child alone in a trailer with only an unknown ICE guard to watch over the child? No responsible parent would do that. In the real world, parents can get investigated by Family Services for leaving their children with total strangers who may be irresponsible or untrained, or worse. The playroom is window dressing.”

    She continued, “Medical care is a joke. Educational services remain non-existent. And social workers? Did I really overlook the availability of such professionals on the ground who could counsel our clients? I regret doing so because every single one of the women and kids could have benefitted from a supportive shoulder."

    And the children are getting sicker, not with the dread diseases that some phobic American citizens feared they were bringing into our country, but with colds, sore throats, and viruses that they caught here in the U.S., in Artesia. The children are running fevers constantly, not eating, losing weight and losing vitality. Yet, visits to the Artesia “dispensary” result in nothing more than advice that children who wake up in the middle of the night with nightmares, fever, and coughs, try ”breathing.” It was no accident, but a predictable event, that children left untreated for chronic colds and fever would experience life-threatening febrile seizures.

    (To Be Continued . . . )

    [1] See News Release of September 19, 2014,“ERO, HSI share a humanitarian mission at ICE Family Residential Facility in Artesia, New Mexico,” (On file with author via Google cache as it appeared on Sep 24, 2014 12:57:36 GMT. No longer available on ICE’s website).

    [2] Email from Deborah S. Smith, Esq. on file with the author.

    (c) 2014. All rights reserved. Lory D. Rosenberg

    Updated 10-03-2014 at 02:03 PM by Lrosenberg

  5. BIA Denovo Adjudications Hoisted On Its Own Regulatory Petard

    After five years of ups and downs, Attorney Maria Baldini-Potermin wrangled a smashingly-great asylum decision from the Seventh Circuit - a decision that has implications reaching far beyond her gay, HIV positive Mexican client's individual case. Rosiles-Camarena v. Holder, No. 11-3086 (7th Cir. August 21, 2013). The crux of the case involves the appropriate standard of review allocated to the Board of Immigration Appeals by the regulations promulgated and adopted during the George W. Bush administration when John Ashcroft headed up the Department of Justice and served as Attorney General (aka, during the "streamlining" period when the BIA's appeal backlog was at an all-time high).

    Trust me, it's more interesting and impactful than it sounds.

    It's important to recall that the climate in which the "streamlining" regulations were devised and promulgated was one in which the BIA's 3 member deliberative panel decisions were disfavored, separate opinions (particularly lengthy ones) were disfavored, BIA precedent opinions were disfavored, and close scrutiny of IJ decisions, particularly credibility decisions, was disfavored. After Ashcroft and his successor Attorneys General departed, and the dust settled, the Board was left with the job of interpreting these regulations, which unquestionably constricted it's role, in the context of real life cases and decisions.

    In Matter of V– K–,24 I&N Dec. 500 (BIA 2008), the BIA attempted to create a rationale for viewing (and reviewing) determinations based on factual circumstances in asylum claims as mixed questions of fact and law, permitting the BIA to exercise de novo review authority when an IJ's decision was appealed by either the respondent or the government. The BIA ruled that an Immigration Judge’s prediction or finding regarding the likelihood that an alien will be tortured relates to whether the ultimate statutory requirement for establishing eligibility for relief from removal has been met and is therefore a mixed question of law and fact, or a question of judgment. Id. at 501-502. The BIA relied on the regulation providing that the Board “may review questions of law, discretion and judgment and all other issues in appeals from decisions of immigration judges de novo.” Id. at 501 (citing 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii)).

    Ultimately, the Board's decision in Matter of V-K- rested on the observation that "it would appear essential to the performance of our appellate function as contemplated by the Attorney General that we possess the authority to review de novo findings deemed by an Immigration Judge to satisfy an ultimate statutory standard. Id. at 502. In other words, if the likelihood or possibility of something happening is left virtually unreviewable except for clear error, the function and role of the Board is diminished.

    Back at the Seventh Circuit, however, Judge Easterbrook understood what was going on. He elaborated that the "Board has interpreted §1003.1(d)(3)(i) in a way that it believes makes clauses (i) and (ii) harmonious by relying on the longstanding distinctions between adjudicative and legislative facts, and between historical (case-‐‑specific) facts and those aspects of discretion or judgment that concern country-wide conditions—subjects on which the Board thinks that the United States should be able to speak with one voice, rather than through a cacophony of immigration judges." Rosiles-Camarena, supra. at 7.

    To be sure, and why not? Uniformity and consistency were previously highly regarded values at the Board.

    To quote Judge Easterbrook: "The problem is that the Board’s arguments would be better as reasons to revise the regulation than as reasons to interpret it differently from the similar language that governs relations between federal trial and appellate courts." In ruling that the BIA exceeded its review authority by imposing a denovo review standard upon facts, the Seventh Circuit now has joined 5 other circuits. [1]

    Judge Easterbrook smoothly disposed of the Board's concern that it's function and role would be usurped if it were deprived of de novo review over the IJ's finding in a case such as Rosilies-Camerena byoffering an interesting perspective: "Perhaps the Board’s view that it may make independent decisions about predictions is a consequence of giving itself too little leeway to find IJs’ predictions clearly erroneous." Id. at 9. Judge Easterbrook noted in particular that the Board had raised concerns about whether evidence that there was no more than a 1-in-100,000 chance that any given gay man would be killed any given year meets a more--likely--than--not burden of persuasion.

    So - whereas the Board might justifiably find clear error in an unwarranted or unsupportable factual finding made by an IJ, the Board instead substituted it’s judgment and made the finding itself – exercising a denovo review authority that it had it lost under the Ashcroft regulations.

    I must say the Board appears to have been hoisted on its own petard - or on the petard Ashcroft created while he was at DOJ. In fact, at the time these regulations were promulgated in 2002, Ashcroft's intent was to strip the BIA of much of its de novo review authority. To my recollection, he viewed the BIA as his personal mouthpiece and felt it should function only to express his views. Now, these rules are coming back to confound the BIA's decisions.

    The Supplementary Information accompanying the final rule is replete with assertions and quotations underscoring this outlook, such as: “[T]he Board acts on the Attorney General's behalf rather than as an independent body. The relationship between the Board and the Attorney General thus is analogous to an employee and his superior rather than to the relationship between an administrative agency and a reviewing court.” Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54,878 (Aug. 26, 2002) (Procedural Reforms) (quoting Matter of Hernandez-Casillas, 20 I&N Dec. 262, 289 n.9 (BIA 1990, A.G. 1991).

    And there’s more. The regulatory history reflects a clearly expressed intent that the final rule "continues to focus on the primacy of immigration judges as factfinders and determiners of the cases before them." See Procedural Reforms, supra. (emphasis added). In contrast, "[t]he role of the Board is to identify clear errors of fact or errors of law in decisions under review . . . not to serve as a second-tier trier of fact." Id. Moreover, the Supplementary Information emphasizes that as an administrative body within the Department, the Board is subject to the Attorney General's direction to the extent that the Attorney General could dispense with Board review entirely. Id. Certainly not a resounding endorsement of the Board’s potential role.

    Judge Easterbrook hit the nail on the head in stating that the BIA has failed to use the authority it does possess to find clear error. Rosiles-Camerena, supra. at 9 (“Instead [the BIA] . . . claimed a right to substitute its judgment for that of the IJ without finding a clear error”) (emphasis in original). The reasons for the Board’s propensity to engage in denovo review rather than to make clear error determinations -- above and beyond the Board’s desire to retain as much of its review authority as possible -- are worthy of consideration.

    Since the regulations prohibit the Board from making factual findings, one apparent consequence of the Board’s ruling that an IJ’s factual or predictive finding is clearly erroneous is the necessity of remand to the IJ, increasing the already clogged and backed-up dockets in the immigration courts. Another consequence is a decrease in final orders of removal. Neither of these outcomes is desirable administratively and certainly won’t be popular with DOJ or Congress, not to mention the individual IJs whose cases are remanded to them – but that is what these regulations seem to require.

    And clear error rulings cut both ways. Assuming the Board accepts this invitation to recognize and rule on clear error more frequently, we may see more decisions reversed on that basis and the focus of review may turn to whether that standard is properly defined, invoked and applied. Hopefully, in the instant case, the BIA will use the remand from the Seventh Circuit as an opportunity to determine that relief is appropriate based on an aggregate of the evidence in the record demonstrating the probability of harm, and will not focus narrowly or exclusively on the one source that triggered it’s concern: that a 1‑in-100,000 chance of death cannot meet a more-likely-than-not burden of persuasion.

    [1] In En Hui Huang v. Attorney General, 620 F.3d 372, 381–87 (3d Cir. 2010), the Third Circuit it applied its holding in Kaplun v. Attorney General, 602 F.3d 260, 269–71 (3dCir. 2010) (CAT) rejecting the Board’s decision in Matter of V-K- to applications for withholding of removal. Four other circuits have agreed. See Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012); Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Zhou Hua Zhu v. Attorney General, 703 F.3d 1303 (11th Cir. 2013). The First Circuit , in contrast, has accepted the rule articulated in Matter of V-K-. See Sicaju-Diaz v. Holder, 663 F.3d 1, 5 (1st Cir. 2011).

    Updated 08-24-2013 at 02:09 PM by Lrosenberg

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