Just got a BIA Briefing Schedule in a case where the Board received the transcript in May 2023. Three years ago. The case has just been sitting at the BIA waiting for the clerk's office to issue this two-page briefing schedule for three years. For no reason. We get 21 days to file our brief.

There is a hearing tomorrow at 11 AM in the lawsuit where the AUSA in March informed the court that ICE had been lying to them all along about the import of their court arrests memo. The case is African Communities Together v. Lyons (1:25-cv-06366).

And how do you make that showing at trial if the IJ, upon hearing from the last witness just says "OK, record closed, I'll make my decision now"?

And all of this will mean more appeals and eventually more hasty decisions getting appealed to circuit court.

This is where the BIA in its current form is completely failing immigration judges (and noncitizens who have to appear before them). A published decisioon like this could give IJs guidance on when to allow closing argument and when to not allow it. Instead, the BIA just says it's never required.

Ultimately, I think we may win most of those appeals. The transcripts are going to be awful because he talks over everyone. But, we very well may lose all of them because we weren't allowed to make a record. And the BIA is just as likely to say that anything not raised at trial is waived.

He also regularly has 4 to 6 trials set in the same day. He is normally completely unfamiliar with the evidentiary record before the start of the hearing. I've had to appeal every case I've had before him so far. Would that be different if he allowed closing argument? I would hope so.

One video IJ I've been set with a handful of times this year doesn't allow closing argument, and he conducts the witness questioning himself. He's easily frustrated by technology. He talks over the witness, talks over the interpreter and counsel, and I'm responsible for making a record...

In my experience, it is extreeeemely common for an IJ to not have reviewed any of the evidence before the trial. Some are more prepared than others. But how can they possibly absorb a 1,000-page record for three or four separate matters in one day, day after day. Closing argument helps with this.

Putting the due process arguments aside, it's extremely dumb to not let parties state their case at all and then reverse bad decisions on appeal because the IJ made a silly error. Closing argument is for the benefit of the judge. IJs are now pressured to conduct several trials per day back to back.

Ha the BIA decides that not letting noncitizens give any closing or opening argument in immigration court isn't a due process violation, but... it still reverse the IJ's negative credibility finding. That's what he says he wanted to give a closing argument on. So...

www.justice.gov/eoir/media/1...

Here's the link to today's decision. Matter of Bolivar Bolivar. www.justice.gov/eoir/media/1....

DHS, the prosecutor, doesn't have to show up.

And, as written, they don't even have to prove that the noncitizen received notice of the hearing! That's in the statute. How is this possible?

Another pro se case

So if I'm the D.C. District Court, I don't think I'm even issuing a remand order. There's no state court to remand to. This is outright dismissal territory, because not a civil action, not a state court, Rooker Feldman, Younger Absentention, and waiver, imo.

The 5th problem is waiver. He already filed an answer below (and attached it to his removal). He may have "waived" removal when he participated in the lower court proceedings (although no DC Circuit law on point that I could find). But his "need for a federal forum" argument is undercut either way.

Even if that doesn't apply, the Younger Abstention doctrine likely applies. Younger abstention generally directs a federal court to abstain from hearing a case that is pending before the lower court. This case involves important state-like interests and there's a functioning adjudicatory process.

Then there's the Rooker Feldman doctrine, which says that federal courts other than the Supreme Court can't review state court decisions unless Congress has specifically authorized such relief. Again, this isn't even a state court case. But if it were, this is a separate jurisdictional problem.

Federal officer removal usually contemplates civil lawsuits for damages, criminal prosecutions, or enforcement actions against agencies. I could find zero cases where a federal court agreed to hear an ongoing disciplinary action against a licensed attorney under either statute.

So what about 24 USC 1442? It does say that "a civil or criminal prosecution" that is "commenced in a State court" against a federal official or agency gets a federal forum and can be removed. But, again, this isn't a civil or criminal prosecution. He's not being sued or prosecuted in a state court

An aside - John Travolta was a looker, y'all.

Problem #2 - it's not a "civil action." Law School 1Ls are assigned the book A Civil Action by Jonathan Harr (and optionally, the John Travolta movie) to learn very early what is and what is not "a civil action." This is a disciplinary proceeding, not a civil action.

The disciplinary case isn't a "State court" proceeding. The D.C. Court of Appeals is an Article I court created by Congress, not a “state court." The DC Board on Professional Responsibility isn't a court at all. Its disciplinary apparatus is an extension of that court, not an independent tribunal.

Screenshot of 28 USC 1441

If someone sues you in State court, you can file a notice of "removal" in federal court, arguing that the case should have been brought there instead. That is, the case has to start in a state court, and it normally needs to be a civil suit. 28 USC 1441. That's the statute he claims to be using...

I finally finished reading Ed Martin's "Notice of Removal" asking a federal court to take over his D.C. Bar disciplinary proceedings. Earlier I noted that the exhibits he filed make him look very bad. But on a deeper level, what he's asking for is itself totally unlawful. Here's how removal works:

If you're a fake US Attorney and you really wanna lay the pressure on that you're a comptent, hard-hitting prosecutor who is going to get to the bottom of some shit, maybe don't write: "All of this make me ask you again" and "Thank." Idk

This is an exhibit Martin chose to file as proof. AFAICT this is just proof that Mr. Martin is a big dullard.

ODC: we didn't get your letter bc you sent it to the wrong address:

Martin: the fact that my secretary used the wrong address on my letter to you should not be used to demean her work.

The gist seems to be that Martin tried to use his position as fake US Attorney for DC to strong-arm the Office of Disciplinary Counsel in DC. Then they opened an investigation of him, and he responded by contacting various judges on the DC Court of Appeals asking ODC to be investigated.

This Ed Martin "removal" notice and the attachments are big time yikes for Mr. Martin. It appears that he tried to use his position as fake US Attorney of DC to strong-arm the Office of Disciplinary Counsel, which then opened an investigation of him. And he looks like a big dummy in the exhibits. 🧵

That's like the 3rd or 4th decision in a week that takes trial-level authorities from the Immigration Judge.

And what's the result in this case? The judge granted this man permanent residence based on exceptional hardship to his son. The BIA instead orders him removed to Mexico.

THIS IS A PATTERN OF REMOVING INDEPENDENCE FROM IMMIGRATION JUDGES. If the IJ hears the testimony, finds it credible, and credits the explanation, but the Board can just discard it anyway, what’s left of the IJ as a factfinder?