The bureaucrats in the Executive Office For Immigration Review (EOIR), the immigration courts in the Department of Justice (DOJ), are still sabotaging immigration enforcement, including the revised rules on illegal aliens in removal proceedings at the border. While I object to the so-called special procedures for the so-called Migrant Protection Protocols (MPP), basically the illegal aliens get two attempts at hearings before an Immigration Judge: one on whether to be put in the MPP, i.e. sent back to wait in Mexico for their hearings, and another on the merits of their underlying fraudulent asylum claim.
The law does not provide for any special review of being sent to wait in Mexico for their EOIR hearing. The law quite clearly states that decision is at the discretion of the Department of Homeland Security (DHS). [More Options For Trump On The Caravan: Make Applicants For Asylum Wait IN MEXICO, October 30, 2018] Despite the clarity of the law and the new MPP policy, one or more Immigration Judges in the San Diego EOIR office are continuing the sabotage.
I will note that in a decision issued on January 31, 2020, the Board of Immigration Appeals (BIA) issued a decision that made clear that where a respondent subject to MPP has received sufficient notice from DHS about a removal hearing, but the respondent fails to appear, the IJ should order the respondent removed in absentia.
The respondent in that case had sought admission at the San Ysidro (California) port of entry, but had been deemed inadmissible. He was given an NTA, which listed his hearing date and time (an afternoon slot in San Diego), which he had signed. He was also given an “a document entitled ‘Migrant Protection Protocols Initial Processing Information'” (“MPP Sheet”). The MPP sheet was written in English, but included a courtesy Spanish translation (copies of which were signed by the respondent), which instructed the respondent to arrive at the San Ysidro port at 9:00 am on the hearing date so that he could be transported to court in San Diego…
The BIA agreed with ICE that the IJ had erred in terminating the proceedings. The respondent had been given adequate notice of the hearing, and advised of the consequences of his failure to appear. While the IJ had “expressed concern that the respondent may not have understood the instructions contained in the MPP Sheet,” the BIA concluded that there was no reason to believe that the respondent had not
[Tent Courts Aren’t Tents — and Provide Due Process, by Andrew Arthur, CIS, February 4, 2020]
The article suggests that this was not just some random case, but a deliberate set-up by the Treason Bar and the unnamed Immigration Judge.
The BIA rejected the arguments of amici that other aliens had problems obtaining and communicating with their lawyers while they were in Mexico, finding that their “arguments and anecdotal evidence” failed to show that the MPP as applied in the case under consideration had violated the due process rights of the respondent.
This was confirmed when reviewing the Board of Immigration Appeals (BIA) decision overturning the attempt at sabotage by the Immigration Judge. Although the BIA sought out amici briefs from the Treason Bar and illegal alien support groups, it is suspiciously coincidental that they had a heads up on the case and were ready to go with support for the Immigration Judge’s action.
In a decision dated May 15, 2019, an Immigration Judge terminated the respondent’s removal proceedings without prejudice. The Department of Homeland Security (“DHS”) has appealed from this decision. While the appeal was pending, we requested and received supplemental briefing from the DHS and amici curiae. 1 The appeal will be sustained, the removal proceedings will be reinstated, and the record will be remanded for further proceedings.
[Matter of J.J. RODRIGUEZ Rodriguez, Respondent, Board of Immigration Appeals , January 31, 2020]
The BIA could have made this decision without amici briefs from outside parties, but the decision was abundantly clear that the Immigration Judge was acting lawlessly and outside his, the opinion clearly identified the Immigration Judge as a man, authority.
Termination of the proceedings was not warranted in this case because there was no legal basis to do so. [Legal citations removed-Ed] As noted, the filing of the notice to appear vested the San Diego Immigration Court with adjudicatory authority over the respondent’s removal proceedings, and the DHS opposed termination and did not move to dismiss the notice to appear pursuant to…Moreover, the Immigration Judge did not permit the DHS to present evidence regarding the respondent’s removability below, so he had no basis for concluding that the DHS had not sustained the charges of removability.
We will therefore reinstate the respondent’s removal proceedings and remand the record. The Immigration Judge should have granted the DHS’s request to proceed with an in absentia hearing. On remand, if the DHS establishes the respondent’s removability based on the facts and the evidence, the Immigration Judge should enter an order of removal. Matter of Sanchez-Herbert, 26 I&N Dec. at 45. Accordingly, the DHS’s appeal will be sustained, the Immigration Judge’s decision will be vacated, the respondent’s removal proceedings will be reinstated, and the record will be remanded for further proceedings.
ORDER: The appeal is sustained, the Immigration Judge’s decision is vacated, and the removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
While such orders are not unprecedented, this is a clear message to saboteurs like Ashley Tabaddor and Amiena Khan that they must follow the law and policy, not their own program of sabotage.
What needs to happen next is disciplinary action against the unnamed Immigration Judge in this case. The BIA said that the Immigration Judge acted lawlessly. Clearly this was ideologically motivated action on the Immigration Judge’s part. Rico J. Bartolomei is the Assistant Chief Immigration Judge in the San Diego EOIR. You can contact him here.
Bartolomei should be taking immediate action to terminate the Immigration Judge for this gross and willful insubordination. If not, Based Bill Barr should insist on such action. It is time to crush this insubordination. This is not the first time that Immigration Judges acted illegally and needed discipline, but it should be the last time.