MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!

https://www.reuters.com/investigates/special-report/usa-immigration-asylum/

Mica Rosenberg, Read Levinson, & Ryan McNeill report:

“They fled danger at home to make a high-stakes bet on U.S. immigration courts

Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.

Filed

OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.

They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.

Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.

Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.

That’s when their fates diverged.

Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.

The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.

Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.

The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.

Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.

Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.

In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.

Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.

Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.

The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.

The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.

About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.

“GROSS DISPARITIES”

Of course, other factors influence outcomes in immigration court.  For example, U.S. government policy is more lenient toward people from some countries, less so for others.

Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.

Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.

The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors.  The longer a judge has been serving, the more likely that judge is to grant asylum.

“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco

The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.

“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.

Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.

Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.

Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.

The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.

The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.

Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)

In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”

Video: High-stakes game of chance in U.S. immigration courts

CRISIS AT THE BORDER

In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.

Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.

Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.

Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.

The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.

Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.

The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.

“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”

The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.

One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.

“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.

“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”

She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.

“NO POLICE HERE”

Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.

Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”

Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”

The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”

Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.

There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.

After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.

Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.

“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”

Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.

Volunteer lawyers helped the women prepare and submit their applications for asylum.

In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.

“ASYLUM FREE ZONES”

Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.

People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.

The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.

The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”

Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.

The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.

In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.

In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.

From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.

The agency does not identify judges who were the subjects of complaints.

Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”

DAY IN COURT

Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.

In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.

Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.

In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.

After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.

Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.

Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness.  As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.

Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”

The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.

Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”

“SOMEONE WANTS TO KILL THEM”

Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”

Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.

Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”

Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.

Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.

In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.

Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.

Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.

“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”

Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.

The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.

Additional reporting by Gustavo Palencia and Kristina Cooke

U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.

More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.

The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.

The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.

Reade Levinson

Heavy Odds

By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco

Data: Reade Levinson and Ryan McNeill

Graphics: Ashlyn Still

Photo editing: Steve McKinley and Barbara Adhiya

Video: Zachary Goelman

Design: Jeff Magness

Edited by Sue Horton, Janet Roberts and John Blanton”

Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.

Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:

http://www.reuters.com/trump-effect/immigration

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Great reporting by Mica and her team!

Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”

It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.

PWS

10-17-17

 

NICKOLE MILLER IN THE WASHPOST: The Truth About Vulnerable Asylum Seekers Refutes Sessions’s False Narrative!

Safari – Oct 16, 2017 at 10:17 AM

Inaccurate claims from Mr. Sessions

The Oct. 13 news article “Citing ‘rampant abuse and fraud,’ Sessions urges tighter asylum rules” quoted Attorney General Jeff Sessions as saying that many asylum claims “lacked merit” and are “simply a ruse to enter the country illegally.” As one of the “dirty immigration lawyers” who has represented hundreds of asylum seekers, I find these claims wildly inaccurate and dangerous. When I ask my clients, the majority of them children, why they came to the came to the United States, they invariably tell me the same thing: I had no choice — I was running for my
life. Indeed, the U.N. High Commissioner for Refugees reported that 58 per cent of Northern Triangle and Mexican children displaced in the United States suffered or faced harms that indicated need for international protection. These children are not gaming the system; they are seeking refuge from rampant gender based violence, MS-13 death threats and child abuse.
While I like to think I am a “smart” attorney, even immigrants represented by the smartest attorneys do not stand a chance in places such as Atlanta, where the asylum grant rate is as low as 2 per cent. Yes, reform is needed, but the only reform we should consider is one that provides more robust protections and recognizes our moral and legal obligation to protect asylum seekers.

Nickole Miller, Baltimore The writer is a lawyer with the Immigrant Rights Clinic at the University of Baltimore School of Law.

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Nickole speaks truth.  Almost all of the “credible fear” reviews involving folks from the Northern Triangle that I performed as a U.S. Immigration Judge, both at the border and in Arlington, presented plausible claims for at least protection under the Convention Against Torture (“CAT”) if the rules were properly applied (which they often are not in Immigration Court — there is a strong bias against granting even the minimal protection that CAT provides). Many also had plausible gender-based, religious, or political asylum claims if they were allowed to gather the necessary evidence.

Whether ultimately successful or not, these individuals were clearly entitled to their day in court, to be listened to by an unbiased judicial decision maker, to have the reasons for the decision to accept or reject them carefully explained in language they can understand, and to have a right to appeal to a higher authority.

Of course, without a lawyer and some knowledge of the complicated CAT regulations and administrative and Federal Court case-law, a CAT applicant would have about “0 chance” of success. The same is true of asylum which requires proof not only of the possibility of future harm, but also proof of causal relationship to a “protected ground” an arcane concept which most unfamiliar with asylum law cannot grasp.

In other words, our system sends back individuals who have established legitimate fears of death, rape, or torture, just because they fail to show that it is “on account” of race, religion, membership in a particular social group, or political opinion. These concepts are often applied, particularly in Immigration Court where respondents are unrepresented, in the manner “most unfavorable” to the claimant.  This is in direct violation of the U.N. guidance which holds that credible asylum seekers should be given “the benefit of the doubt.”

Moreover, assuming that we have the “right” to send good folks, who have done no wrong, back to be harmed in the Northern Triangle, that doesn’t mean that we should be doing so as either a legal or moral matter. That’s what devices like Temporary Protected Status (“TPS”), Deferred Enforced Departure (“DED”), and just “plain old Prosecutorial Discretion (“PD”) are for: to save lives and maintain the status quo while deferring the more difficult decisions on permanent protection until later. Obviously, this would also allow  at least minimal protections to be granted by DHS outside the Immigration Court system, thus relieving the courts of thousands of cases, but without endangering lives, legal rights, or due process.

I agree with Nickole that the “asylum reform” needed is exactly the opposite of that being proposed by restrictionist opportunists like Trump and Sessions. The first step would be insuring that individuals seeking protections in Immigration Court have a right to a hearing before a real, impartial judicial official who will apply the law fairly and impartially, and who does not work for the Executive Branch and therefore is more likely to be free from the type of anti-asylum and anti-migrant bias overtly demonstrated by Sessions and other enforcement officials. 

PWS

10-16-17

“INEXCUSABLE OMISSIONS” — 4th Cir. Slams BIA For Unjustified Denial Of Family-Based Gang Threat Asylum Claim From El Salvador — BIA’s Shoddy Factual & Legal Analysis Of “One Central Reason” Exposed — ZAVALETA-POLICIANO v. SESSIONS!

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ZAVALETA-POLICIANO v. SESSIONS, 4th Cir., as amended 09-18-17 (Published)

PANEL:  GREGORY, Chief Judge, WILKINSON, Circuit Judge, and DAVIS, Senior Circuit Judge

OPINION BY:  Chief Judge Gregory

KEY QUOTE:

“We hold that the BIA abused its discretion in affirming the IJ’s clearly erroneous factual finding. To start, the IJ unjustifiably relied on the fact that the threatening notes themselves did not explain why Zavaleta Policiano was targeted. As this Court recently explained, the single-minded focus on the “articulated purpose” for the threats while “failing to consider the intertwined reasons for those threats” represents “a misapplication of the statutory nexus standard.” Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017). It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone. The IJ’s heavy reliance on the fact that El Salvadoran gangs target various groups of people in the country was similarly misguided. That “the criminal activities of MS-13 affect the population as a whole,” we have explained, is simply “beside the point” in evaluating an individual’s particular claim. Crespin-Valladares, 632 F.3d at 127.

More fundamentally, the IJ and BIA failed to appreciate, or even address, critical evidence in the record. It is this Court’s responsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009). The IJ did discuss the threatening notes (although while drawing unwarranted conclusions, as discussed above). But the IJ failed to address, or to assign any weight to, the significant body of unrebutted, indeed, undisputed, probative evidence giving meaning and context to the threatening notes: (1) Zavaleta Policiano and her father’s stores, as well as their familial relationship, were well-known in the community; (2) MS-13 threatened Zavaleta Policiano several times by phone; (3) Zavaleta Policiano’s statement that MS-13 “threatened me because my father had left;” and (4) the threats against Zavaleta Policiano began immediately after her father fled to Mexico. These are inexcusable omissions in the agency’s analysis.

The Government asks us to reject much of the overlooked evidence, characterizing it as Zavaleta Policiano’s “subjective beliefs [] as to the gangs’ motives.” Appellees’ Br. 22–23. This argument does not explain away the IJ’s and BIA’s wholesale failure to discuss the evidence, however. See Ai Hua Chen v. Holder, 742 F.3d 171, 179 (4th Cir. 2014) (explaining that the IJ and BIA must “offer a specific, cogent reason for rejecting evidence” (quoting Tassi, 660 F.3d at 720)). What is more, Zavaleta Policiano’s affidavit includes much more than her “subjective beliefs”—it contains key evidence of the context, nature, frequency, and timing of the gang’s threats against her and her family. By stipulating to the credibility and veracity of the affidavit, the Government forwent the opportunity to probe and weaken the evidentiary basis of Zavaleta Policiano’s claims.

When considering the unchallenged record evidence, we are compelled to conclude that Zavaleta Policiano’s familial relationship to her father was “at least one central reason” MS-13 targeted and threatened her. The evidence shows that MS-13 explicitly threatened to kill Zavaleta Policiano’s father and his family if he did not pay the extortion demands, and that “[i]mmediately after” he fled El Salvador, the gang began threatening Zavaleta Policiano. A.R. 210. The timing of the threats against Zavaleta Policiano is key, as it indicates that MS-13 was following up on its prior threat to target Barrientos’s family if he did not accede to the gang’s demands. This explanation appears especially probable given the absence of record evidence that Zavaleta Policiano was ever threatened before her father’s departure. Beyond the timing, Zavaleta Policiano’s affidavit outlines the well-known relationship between the two businesses and the Policiano family, and contextualizes her statement that she was threatened because her father left. And just as MS-13 threatened Zavaleta Barrientos and his children, the gang threatened Zavaleta Policiano and her children, suggesting a pattern of targeting nuclear family members. The totality of this undisputed evidence demonstrates that Zavaleta Policiano was persecuted on account of her family membership.

We add that the BIA’s attempt to distinguish our precedent is unpersuasive. The BIA found, in a single sentence without any analysis, that Zavaleta Policiano’s claim is distinct from the one at issue in Hernandez-Avalos. A.R. 4 (mentioning Hernandez- Avalos, 784 F.3d at 949–50). But that decision actually bolsters Zavaleta Policiano’s position. There, the BIA denied asylum to a mother who was threatened by an El Salvadoran gang after she refused to allow her son to join the gang. The BIA held that the mother was not threatened on the basis of familial ties, but rather “because she would not consent to her son engaging in a criminal activity.” Hernandez-Avalos, 784 F.3d at 949 (citation omitted). In other words, the BIA determined that the gang’s threats against the mother were motivated by its desire to recruit the son. This Court rejected that “excessively narrow reading of the requirement that persecution be undertaken ‘on account of membership in a nuclear family.’” Id. We instead found that the nexus requirement was satisfied, explaining that the mother’s relationship “to her son is why she, and not another person, was threatened with death if she did not allow him to join [the gang].” Id. at 950. The same logic applies here. MS-13 warned Zavaleta Barrientos that it would target his family if he did not pay the extortion demands, and the gang in fact threatened Zavaleta Policiano immediately after her father left. Zavaleta Policiano’s relationship to her father is why she, rather than some other person, was targeted for extortion.

For all the reasons outlined above, we conclude that the BIA erred by affirming the IJ’s clearly erroneous finding. Zavaleta Policiano was not required to prove that the gang’s threats were “exclusively” motivated by her family ties—such “a requirement defies common sense.” See Cruz, 853 F.3d at 130. She only needed to show that the relationship with her father was “at least one central reason” MS-13 threatened her. Because Zavaleta Policiano made this showing, we find the BIA decision to be manifestly contrary to law and an abuse of discretion. See Hernandez-Avalos, 784 F.3d at 953 n.10. By establishing that she was persecuted on account of her family membership, Zavaleta Policiano has satisfied the first two requirements of her asylum claim.”

*******************************

Read the complete decision at the above link.

“Inexcusable” describes how the Immigration Courts under the BIA’s defective leadership are skewing facts and law to deny protection to Central American refugees. Not everyone can get a great lawyer like Tamara Jezic, and not every Circuit Court is as conscientious as this Fourth Circuit panel. That means that many of those Central Americans being railroaded through the system by DHS and EOIR are being improperly denied protection.

How can Federal Courts including the Supremes justify continuing to give “deference” to an appellate body that possesses neither expertise in the law nor care in reviewing records? It’s clear that BIA appellate review has become highly politicized and biased against asylum seekers. How much more of this nonsense are the Federal Courts going to put up with?

It also appears that the term “excessively narrow reading” is a perfect description of the BIA’s recent precedent in  Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), in which the BIA tortured the law to come up with a way of denying most family-based claims. Will the Fourth Circuit “call out” the BIA on this attempt to evade the law by denying family-based asylum claims?

We need an independent Article I Immigration Court!

Thanks and congratulations to respondent’s attorney Tamara Jezic for alerting me to this important decision.

PWS

09-18-17

 

 

RECENT UNPUBLISHED REMANDS FROM 3RD & 2D CIRCUITS SHOW HOW BIA TILTS FACTS & LAW TO DENY PROTECTION TO CENTRAL AMERICAN REFUGEES

HOW THE BIA UNFAIRLY DENIES PROTECTION TO CENTRAL AMERICAN REFUGEES WHILE ENCOURAGING U.S. IMMIGRATION JUDGES TO DO THE SAME

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Two recent (alas unpublished) decisions from the Third and Second Circuits illustrate a key point that the Hon. Jeffrey Chase and I have made in our prior blogs: too often the BIA goes out of its way to bend the law and facts of cases to deny asylum seekers, particularly those from Central America, the protection to which they should be entitled. The BIA’s erroneous interpretations and applications of the asylum law have a corrupting effect on the entire fair hearing system in the U.S. Immigration Courts and the DHS Asylum Offices.

See:

http://immigrationcourtside.com/2017/08/13/analysis-by-hon-jeffrey-chase-bia-once-again-fails-refugees-matter-of-n-a-i-27-in-dec-72-bia-2017-is-badly-flawed/

http://immigrationcourtside.com/2017/06/03/introducing-new-commentator-hon-jeffrey-chase-matter-of-l-e-a-the-bias-missed-chance-original-for-immigrationcourtside/

http://immigrationcourtside.com/2017/08/14/politico-highlights-lack-of-due-process-cultural-awareness-proper-judicial-training-in-u-s-immigration-courts-handling-of-vietnamese-deportation-case/

http://immigrationcourtside.com/2017/08/11/4th-circuit-shrugs-off-violation-of-refugees-due-process-rights-mejia-v-sessions/

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

http://immigrationcourtside.com/2017/07/31/u-s-immigration-courts-apear-stacked-against-central-american-asylum-applicants-charlotte-nc-approval-rates-far-below-those-elsewhere-in-4th-circuit-is-precedent-being-misapplied/

 

Aguilar v. Attorney General, 3d Cir., 08-16-17

163921np

What happened:

Aguilar credibly testified that he was extorted by MS-13 because he was a successful businessman. Aguilar publicly complained to neighbors about the gang and said he would like them exterminated. Thereafter, the gang told him that because he had complained, they were doubling the amount of their extortion to $100 and would kill his family if he didn’t comply. Eventually, the gang increased the demand to $500 and threatened Aguilar at gunpoimt. Aguilar left the country and sought asylum in the U.S.

What should have happened:

Aguilar presented a classic “mixed motive” case.  In a gang-ridden society like El Salvador, public criticism of  gangs is a political opinion. This is particularly true because gangs have infiltrated many levels of government. Indeed in so-called “peace negotiations,” the Salvadoran government treated gangs like a separate political entity.

Undoubtedly, the gang’s increased extortion combined with death threats against Aguilar and his family resulted from his public political criticism of the gangs. Indeed, they told him that was the reason for increasing the amount to $100. There also is no doubt that gangs are capable of carrying out threats of harm up to the level of death and that the Salvadoran government is often unwilling or unable to protect its citizens from gangs.

Consequently, the respondent has established a well-founded fear (10% chance) of future persecution. He has also shown that political opinion is at least one central reason for such persecution. Consequently, Aguilar and his family should be granted asylum.

What actually happened:

The Immigration Judge denied Aguilar’s claim, finding  that Aguilar’s statements were not made “in a political context” and also that the increased extortion and threats of harm were motivated by “pecuniary interest or personal animus” not a political opinion. The BIA affirmed on appeal.

What the Third Circuit said:

“Nothing in this exchange indicates that Aguilar believed that MS continued asking him for money “over the years” solely because he was a business owner or that their motive did not evolve over time. Rather, Aguilar’s earlier testimony stated that after he had made his negative statements about MS, “a few days pass, less than a week, when I have them back, and three of them came, and they said, we heard that you talked badly about us, and because you did that we are going to charge you $100 a week from now on, and if you don’t pay that we are going to kill your family.” (A.R. 171 (emphasis added).) In other words, Aguilar testified that the gang specifically cited his statements as the reason why it was increasing his payments. This runs contrary to the BIA’s conclusion

that his testimony “did not indicate a belief that he was targeted on account of any beliefs, opinions, or actions,” (App. 10), and directly supports his mixed motive argument. Despite affirming the IJ’s determination that Aguilar was credible, (App. 10), the BIA failed to acknowledge this important portion of Aguilar’s testimony. Instead, both the BIA and IJ determined that Aguilar had failed to show that his increased extortion payments and threats were the result of a protected ground rather than the pecuniary interest or personal animus of MS. However, the BIA has recognized that [p]ersecutors may have differing motives for engaging in acts of persecution, some tied to reasons protected under the Act and others not. Proving the actual, exact reason for persecution or feared persecution may be impossible in many cases. An asylum applicant is not obliged to show conclusively why persecution has occurred or may occur. In Re S-P-, 21 I. & N. Dec. 486, 489 (B.I.A. 1996). As such, “an applicant does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible.” Id. While we must affirm factual determinations unless the record evidence would compel any reasonable factfinder to conclude to the contrary, Aguilar’s credible testimony supports his assertion that the increased payments were, at least in part, the result of his negative statements. Requiring him to show that the MS members were motivated by his membership in the particular social group of persons who have spoken out publicly against the MS and who have expressed favor for vigilante organizations, rather than personal animus because of those statements, would place an unreasonable burden on Aguilar. There is no clear delineation between these two motives, and there is

no additional evidence that we can conceive of that would allow Aguilar to hammer down the gang members’ precise motivations, short of their testimony. Rather, the immediacy with which the gang increased its demands coupled with its stated reason for the increase leads us to conclude that any reasonable fact finder would hold that Aguilar had demonstrated that the increased demands were at least in part motivated by his statements.

The question now becomes whether Aguilar’s statements were a political opinion or if they indicated his membership in a particular social group. The IJ determined that Aguilar’s criticism of MS was not made in a political context, and the BIA affirmed. (App. 2, 24 n.3.) However, neither the IJ nor the BIA provided reasoning to support this finding. Similarly, the IJ determined that Aguilar’s proposed particular social groups were not sufficiently particular or socially distinct. (App. 24 n.3.) Again, no reasoning was given. The BIA declined to weigh in on the issue because it found that Aguilar had not met his burden of showing a nexus between the persecution and a protected ground. Thus, we will vacate and remand the issue to the BIA to review whether Aguilar’s proposed groups are sufficiently particular or distinct, and to provide a more detailed review of whether his statements were a political opinion. Aguilar’s application for withholding of removal should similarly be reevaluated in light of our guidance.”

Martinez-Segova v. Sessions, 2d Cir., 08-18-17

http://www.ca2.uscourts.gov/decisions/isysquery/c0292714-4831-4fb8-b31e-c1269886a55b/1/doc/16-955_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c0292714-4831-4fb8-b31e-c1269886a55b/1/hilite/

What happened:

Martinez-Segova suffered domestic abuse at the hands of her husband. She suffered harm rising to the level of past persecution on account of a particular social group. However, the DHS claims that the Salvadoran government is not unwilling or unable to protect Martinez-Segova because she obtained a protective order from a court. After the protective order was granted the respondent’s husband “violated the order with impunity by showing up to her place of work kissing and grabbing her and begging her to return.”

According to the U.S. State Department,

“Violence against women, including domestic violence, was a widespread and serious problem. A large portion of the population considered domestic violence socially acceptable; as with rape, its incidence was underreported. The law prohibits domestic violence and generally provides for sentences ranging from one to three years in prison, although some forms of domestic violence carry higher penalties. The law also permits restraining orders against offenders. Laws against domestic violence were not well enforced, and cases were not effectively prosecuted.”

Martinez-Segova also submitted lots of documentary evidence showing “the Salvadoran government’s 13 inability to combat domestic violence.”

What should have happened:

Martinez-Sevova has a “slam dunk” case for asylum.  The Government’s argument that Salvador can protect her is basically frivolous. The Salvadoran government in fact was unable to protect the respondent either before or after the protective order. The State Department Country Report combined with the expert evidence show that the Salvadoran government t has a well-established record of failure to protect women from domestic violence.

The idea that the DHS could rebut a presumption of future persecution based on past persecution by showing fundamentally changed circumstances or the existence of a reasonably available internal relocation alternative is facially absurd in the context of El Salvador.

What really happened:

Incredibly, the Immigration Judge denied Martinez-Segova’s claim, and the BIA affirmed. The BIA made a bogus finding that Martinez-Segova failed to show that the Salvadoran government was unwilling or unable to protect her.

What the Secomd Circuit said:

“We conclude that the agency failed to sufficiently consider the country conditions evidence in analyzing whether Martinez-Segova demonstrated that the Salvadoran government was unable or unwilling to protect her from her husband. The BIA relied heavily on the fact that Martinez-Segova failed to report her husband’s violation of the protective order to the police. The agency’s decision in this regard was flawed. Where, as here,“the IJ and BIA ignored ample record evidence tending to show that”authorities are unwilling and unable to  protect against persecution, we need not decide “whether [a petitioner’s] unwillingness to confront the police is fatal to [her] asylum claim.” Pan v. Holder, 777 F.3d 540, 544-45 (2d Cir. 2015); see also Aliyev v. Mukasey, 549 F.3d 111, 118 (2d Cir. 2008) (declining to determine “precisely what a person must show in order for the government to be deemed responsible for the conduct of private actors” where petitioner “introduced enough evidence to forge the link between private conduct and public responsibility” (emphasis added)).

Although the agency does not have to parse each individual piece of evidence, Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007), there is no indication that the agency considered the ample record evidence of the Salvadoran government’s inability to combat domestic violence—a phenomenon that the U.S. State Department deems one of El Salvador’s “principal human rights problems” for which its efforts to ameliorate the problem are “minimally effective.” A declaration from an human rights attorney and expert on gender issues in El Salvador reveals that orders of protection, while difficult to procure, “do little to protect victims from further violence because judges often draft them inadequately and law enforcement officials neglect or refuse to enforce them” and “are little more than pieces of paper affording no more protection than the victims had prior to the legal process.” Where orders of protection are issued, the onus is on the government to ensure compliance; for example, judges are required to appoint an independent team to monitor compliance with orders of protection and that inadequate follow up “frequently renders victims of domestic violence virtually helpless to enforce their rights.” There is no indication that that judge did this in Martinez-Segova’s case. Moreover, the order of protection prohibited Martinez-Segova’s husband from “harassing, stalking, [and] intimidating” her, but her husband nonetheless violated the order with impunity by showing up to her place of work, kissing and grabbing her and begging her to return. Because the agency’s conclusion—that Martinez- Segova failed to establish that the Salvadoran government was unable or unwilling to protect her from her husband because she had been able to obtain a protective order —is in tension with the record evidence demonstrating that such orders are largely ineffective, we grant the petition and remand for consideration of this evidence. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite our generally deferential review of IJ and BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.”). Because remand is warranted for the agency to consider whether Martinez-Segova established past persecution, we decline to reach its humanitarian asylum ruling at this time. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). Moreover, the BIA did not address the IJ’s conclusion that the Government rebutted Martinez-Segova’s well-founded fear of persecution, and that determination generally precedes an analysis on whether humanitarian asylum is warranted. See 8 C.F.R. § 1208.13(b)(1)(B)(iii) (humanitarian asylum is generally considered “in the absence of a well-founded fear of persecution”).”

CONCLUSION

The BIA and the Immigration Judges made an incredible number of serious errors in these two cases, from misreading the record, to ignoring the evidence, to botching the law.

So, while DOJ and EOIR are patting each other on the back for becoming such great cogs in the Trump deportation machine, and racing removals through the system, the real results are starkly illustrated here. Every day, vulnerable asylum applicants with sound, well-documented claims that should be quickly granted either at the Asylum Office or on an Immigration Court’s “short docket” are being screwed by the BIA’s failure to protect the rights of asylum seekers and to educate and in some cases force Immigration Judges to do likewise.

The Federal Courts are being bogged down with cases that a third-year law student who has had a course in asylum law could tell have been badly mis-analyzed. The idea that EOIR contains the world’s best administrative tribunals dedicated to guaranteeing fairness and due process for all has become a cruel joke.

Our Constitution and laws protecting our rights are meaningless if nobody is willing and able to stand up for the rights of individuals who are being railroaded through our system. We saw this in the era of Jim Crow laws directed at depriving Black Americans of their rights, and we are seeing it again today with respect to migrants caught up in the Trump Administration’s gonzo enforcement program.

Yeah, today it’s not you or me. But, when you or I need justice, why will we get (or deserve) any better treatment than the farce that the Trump Administration and EOIR are unloading on migrants now?

PWS

08-27-17