On Jan 4 the Eighth Circuit issued a pretty awful opinion on eligibility for a fraud waiver after a person is denaturalized for fraud, essentially endorsing gamesmanship by the DHS without notice. The case is Herrera Gonzalez v. Rosen. ecf.ca8.uscourts.gov/opndir/21/01/1…
Petitioner admitted she had gotten her permanent residence through fraud (which led to a criminal conviction and later denaturalization). The government charged her with removability for the fraud, and she applied for the waiver that is allowed under that section.
After the judge had sustained the fraud charge, the DHS added a new charge that the marriage fraud conviction was a "crime involving moral turpitude." Then, at trial, the DHS withdrew the fraud charge, leaving only the CIMT charge, and argued there was no waiver for just the CIMT
Citing Matter of Tima, the Eighth Circuit agreed that the "fraud waiver" couldn't be used if the DHS plays this game of charging the same conduct under a different section, and that not doing that until the moment of trial didn't violate her right to due process.
There are problems with this. One is that Matter of Tima largely erases part of the fraud waiver statute - the part that says a fraud waiver under that section does waive other related grouns of removability. I wrote about it here when Tima was issued. hoppocklawfirm.com/bia-fails-to-c…
The BIA's decision in Tima doesn't even mention that last sentence of the fraud waiver statute, which pretty clearly says the fraud waiver can waive other related grounds of removability "directly resulting from" the act of fraud.
Another is that prior BIA precedent said the fraud waiver could waive related removability grounds, and Tima left those in place. E.g. Matter of K allowed the same fraud waiver to waive a separate ground of removability for a false claim to citizenship. justice.gov/sites/default/…
A third problem - Justice Kagan pretty clearly rejected this practice in Judulang, calling this manner of charging the same conduct under different sections to get around waiver eligibility a "sport of chance."
In this new decision, the Eighth Circuit doesn't address Judulang, the remaining text of the waiver statute, Matter of K, or the limitations of Matter of Tima. It just says if DHS chooses to change the charge from "fraud" to "CIMT" (even if for the same conduct), then no waiver.
The remaining problem is the court's due process analysis, which is all of a single sentence. Apparently the DHS changing which charge they're going to pursue on the day of trial "does not implicate" due process just because...
P.S. one last problem is the court's reliance on Matter of Koloamatangi. The BIA's decision in Matter of Agour seems to call into question the premise of Koloamatangi (without squarely addressing it). justice.gov/sites/default/…
Koloamatangi says if you get your status through fraud, ur not "lawfully admitted for permanent residence" so ur ineligible for cancellation of removal. Agour assumed a fraudulent marriage still met that standard.

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More from @MatthewHoppock

13 Jan
Harris's comments yesterday about their plan to hire more immigration judges should be concerning to anyone who has followed the way the EOIR has hired immigration judges and BIA members in the last four years. Putting more pieces into this broken machine won't fix it.
The EOIR made specific, unprecedented changes to the hiring process in the last four years to place unqualified candidates with high denial rates into these positions (reupping this 10/19 piece from @Tanvim). rollcall.com/2019/10/29/doj…
In another example, the DOJ hired Guantanamo judge Vance Spath and spent 2 years negotiating the position with him while he was a sitting judge hearing cases where the DOJ was a party (see this piece from @carolrosenberg) nytimes.com/2019/04/16/us/…
Read 13 tweets
28 Dec 20
Last week the @DOJ_EOIR quietly updated its list of "Myths vs. Fact." I haven't factchecked the new one, but it's much longer and at first glance appears to even more misleading than the previous one. justice.gov/eoir/page/file…
Also, EOIR uploaded the new one at the same URL as the prior one, which effectively removes the prior one from the internet. I've saved a copy of the old one here: hoppocklawfirm.com/myth_vs_fact_0…
The first one, which McHenry seems to have unilaterally issued in May 2019, was met with confusion and disbelief by others in the agency, including the union representing immigration judges. They have since been decertified, so lexisnexis.com/legalnewsroom/…
Read 10 tweets
14 Dec 20
New policy memo from @DOJ_EOIR about implementing the "death to asylum" regulations which don't go into effect for another month and will likely be enjoined before then. justice.gov/eoir/page/file…
As others have noted, the DHS portion of the rule suffers from the same legal problem as other recent DHS regs: the DHS doesn't have a a Secretary, and Chad Wolf's appointment as "acting" secretary was unlawful.
Also, both the DHS portion and the DOJ portion are plainly inconsistent with the statute and suffer from other APA problems (including not engaging in notice and comment in good faith).
Read 13 tweets
14 Dec 20
Spent the weekend reading this 600-page CIA report on the attempts to deport suspected Nazi war criminals. Lots of bad looks here for @JusticeDept. The report is posted in multiple parts on the CIA's CREST database. I combined them and uploaded them here: ia601406.us.archive.org/19/items/cia-a…
The report details a number of instances where federal agencies protected Nazi war criminals for years when it was beneficial and not publicly embarassing. Then when they were sufficiently embarassed the DOJ OSI tried to deport them but used shady evidence supplied by the USSR.
In the case of Edgars Laipenieks, even George H. W. Bush gets in on it. By the way, the article this report cites is also available in CREST. It says Bush "refused to elaborate" further.
Read 7 tweets
11 Dec 20
Another EOIR policy memo posted yesterday eliminates some of the adjournment codes previously existing, including adjournments to allow respondents to file applications for asylum and other relief. justice.gov/eoir/page/file…
This removes Code *05 (for filing asylum app), *06 (for filing other apps), *22 (rejected earliest hearing), ǂ23 (asylum app withdrawn), 24 (DHS to complete prints), *51 (contested charges).
This memo adds two new adjournment codes related to "case flow processing" - 9V (vacated MC hrg), and TQ (case reviewed for readiness and placed in trial queue). Not sure what TQ is supposed to be for. Btw prior memo's here: justice.gov/eoir/page/file…
Read 11 tweets
11 Dec 20
New EOIR policy memo PM 12-08 on the pro bono legal services list. Acknowledges IJs are required by regulations to "advise" all responents of the availability of pro bono legal services (which the case flow processing memo would make impossible). justice.gov/eoir/page/file…
Also acknowledges that when the respondent expresses a fear of persecution, at the time of filing an asylum application the statute requires the IJ to again give the respondent a copy of the current pro bono list. See 8 USC 1158(d)(4)(B). law.cornell.edu/uscode/text/8/…
Again, the new case flow processing memo makes that impossible because the hearing at which represented folks will be filing the asylum application gets cancelled. And, it's not true that represented folks don't need access to pro bono counsel. Attorneys withdraw...
Read 13 tweets

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