“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Ninth Circuit judge Daniel Bress tried to uphold a Bureau of Immigration Appeals (BIA) order to deport a Salvadoran immigrant even though the BIA failed to address contentions that the Immigration Judge (IJ) committed procedural errors. The Ninth Circuit majority rejected that view, and sent the case back for the BIA to consider the objections in its May 2020 decision in Menjivar v. Barr.

Jose German Menjivar sought protection in the U.S. from deportation back to El Salvador. An IJ rejected his claim, and the BIA affirmed. The BIA failed to address Menjivar’s complaint that the IJ “committed procedural errors” by not allowing live testimony concerning his prior criminal convictions and by not providing him more time to prepare a declaration.

In a 2-1 opinion including George W. Bush nominee Milan Smith, the Ninth Circuit reversed the BIA’s decision. The majority explained that according to precedent, the BIA is “not free to ignore arguments raised by a petitioner.” The Ninth Circuit had previously held in the Montes-Lopez case that reversal and remand are  appropriate when the BIA “fails on appeal to consider and decide claims that the IJ proceedings suffered from procedural irregularity.” Based on this controlling precedent, the majority sent the case back to the BIA to consider Menjivar’s arguments.

Trump judge Daniel Bress dissented. He asserted that Montes-Lopez did not apply because Menjivar “barely discussed” his procedural objections, notwithstanding the fact that he did in fact raise them. Most of Bress’ dissent was devoted to arguing against the Montes-Lopez precedent itself, which he claimed causes him “discomfort” because it does not give the BIA enough discretion to summarily affirm IJ decisions.

“Discomfort” with previous precedent, however, is clearly not a sufficient reason to effectively ignore or overrule it. Fortunately, the majority respected prior precedent and sent the case back so that the BIA will be required to consider and decide Menjivar’s claims that the IJ committed error. If it had been up to Bress, however, he would not even have the opportunity to have his arguments considered before being deported.