August 18, 2022
By Matt O’Brien
The Fourth Circuit Court of Appeals is apparently more concerned about hurting aliens’ feelings than it is about protecting American citizens from drunk-driving-pedophiles. In a recent decision, it chastised an Immigration Judge (IJ) for calling a criminal alien’s defense in deportation proceedings exactly what it was: fatuous and risible.
Rodolfo Tinoco Acevedo is from Nicaragua. He was ordered removed from the United States after he was convicted for drunk driving three times and for exposing his genitals to an eleven-year-old child. During deportation proceedings, the IJ hearing the case called the claims Tinoco Acevedo made in support of his application for relief from removal “stupid” and “laughable.” This was the second time Immigration and Customs Enforcement tried to remove him from the U.S.
Tinoco Acevedo requested review by the Board of Immigration Appeals (BIA). The BIA affirmed his deportation. He then appealed to the Fourth Circuit, which has now kicked his case back to the BIA to consider whether the IJ spoke to Tinoco Acevedo in a sufficiently professional manner. Apparently, the IJ’s comments hurt Tinoco’s feelings and the appellate court was concerned that such “harsh” language might constitute a denial of due process.
Here’s the thing, Tinoco Acevedo’s claims were, in fact, both stupid and laughable. He applied for a form of relief called “cancellation of removal,” which required him to demonstrate that positive factors in his case outweighed the negative ones. In order to make this showing, Tinoco Acevedo made two assertions: 1) after having resided in the U.S. for two decades, he felt like a stranger in Nicaragua; and 2) although he was a fluent and regular speaker of Spanish, since coming to the U.S. he could no longer effectively communicate in the Nicaraguan variant of Spanish.
These claims are utterly preposterous on their face. Tinoco Acevedo’s first language was Spanish. He came to America as an 18-year-old adult. At roughly 37 years of age, he has lived in Nicaragua for about as long as he has now lived in the U.S. He regularly traveled to Nicaragua to visit family and friends who still reside there. And he freely admitted that, while residing in the United States, his primary language has been Spanish.
In reality, there is nothing especially unique about the Spanish spoken in Nicaragua. According to one company that translates software programs from one language to another, “While there are many dialects [of Spanish] spoken in the Americas, speakers of almost all can understand each other without major difficulties.” That’s because the variation between Nicaraguan Spanish and, for example, Honduran Spanish, is comparable to the difference between the English spoken in New York and that spoken in Georgia. Accordingly, it’s easy to see how the IJ would have trouble taking seriously Tinoco Acevedo’s allegations that he would struggle culturally and linguistically if repatriated to Nicaragua.
In short, Tinoco Acevedo’s claim amounted to a simple assertion that deportation would be an inconvenience. However, the fact that a deportée might be inconvenienced by his removal from the U.S. isn’t – and never has been – a legitimate basis for allowing a criminal alien to remain here. So the presiding IJ’s remarks regarding Tinoco Acevedo’s claims were both legally and factually accurate. That Tinoco Acevedo didn’t like hearing the verity that his arguments were baseless is totally irrelevant.
Moreover, the majority of competent IJs would have denied Tinoco Acevedo’s case even if he had come here as an infant and never learned Spanish. According to the BIA, drunk driving is a serious crime that can bar an alien from a number of immigration benefits. And any sexually-oriented crime involving a minor must be taken very seriously by the Immigration Court. Tinoco Acevedo’s criminal convictions alone were a sufficient basis to order him removed, even in the presence of genuine positive equities.
So why didn’t the appellate court simply affirm the decision entered in Tinoco Acevedo’s case by the BIA? Well, under the Biden administration, no immigration case is over until the alien wins. And, when it comes to immigration, the recent decisions of the Fourth Circuit show that it has bought into the Biden agenda lock, stock and barrel.
Therefore, the bad guy in this particular matter is not Tinoco Acevedo, the law-breaking alien with a record of drunk driving and a sex crime. Rather, the transgressor is the IJ who had the temerity to tell Tinoco Acevedo the truth, that he was wasting the court’s time by advancing legally and factually fallacious arguments. And if accomplishing Team Biden’s anti-border agenda means potentially releasing boozy foreign pedophiles into American communities, on the spurious grounds that an IJ wasn’t nice enough to them – then the justices of the Fourth Circuit seem to have announced that their particular vision of immigration law requires them to put the interests of criminal aliens first and the concerns of their fellow U.S. citizens a distant second.
Matt O’Brien is the Director of Investigations at the Immigration Reform Law Institute. He is a former Immigration Judge who was assigned to the Arlington Virginia Immigration Court.
Also published at The Washington Times, August 18, 2022.
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