🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!

🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!

 

  1. Pastors Welcome Busses

Rebekah Barber reports for religionnews.com:

https://religionnews.com/2024/01/17/chicago-pastors-help-the-city-grapple-with-flood-of-migrants/

Chicago Pastors Welcome
Locals and migrants attend a banquet at First Presbyterian Church of Chicago on Nov. 30, 2023. (Photo by Max Li)

(RNS) — Chicago was already facing a homelessness crisis before Texas’ Republican governor, Greg Abbott, began directing thousands of migrants entering his state to Democratic bastions that had declared themselves migrant-friendly sanctuary cities.

Since the transfers began in April 2022, more than 20,000 migrants, many of them destitute Venezuelans, have arrived, and many Chicagoans have expressed concerns that the city’s resources are being drained and have accused government officials of failing to communicate about the migrants’ cost and their fates.

At the same time, advocates for the migrants, especially community organizers in more vulnerable neighborhoods, have pushed back against attempts to pit two marginalized groups against each other. These groups have stepped up to support the new arrivals and in many cases have found allies in local faith leaders.

. . . .

Black said the majority of community residents want to find a way to both support the migrants and build support for a part of Chicago that has been historically underserved and underresourced. At the banquet at First Presbyterian, a speaker from Southside Together Organizing for Power, a community organizing group, talked about what it means to have Black and brown unity.

“It’s basically founded on this idea that there’s no scarcity,” Black said. “Not only is there enough for everybody — for the asylum-seekers, and the historically disenfranchised populations of South Side Chicago.”

He added, “We have so much more to gain from our unity than from the division which is being manufactured and orchestrated by interests that don’t want these communities to get the resources they need.”

This article was produced as part of the RNS/Interfaith America Religion Journalism Fellowship.

2) GW Law Clinic Students Help New Arrivals

From Professor Alberto Benítez:

Newcomer Fair at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus

I report that today Immigration Clinic student-attorneys Raisa Shah, Jennifer Juang-Korol, and I participated in the Newcomer Fair that the District of Columbia Public Schools sponsored at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus, primarily Venezuelans living in DC shelters. We shared immigration and social services information, GW swag, and met lots of cute kids. We were the only law school that participated. Please see the attached. 

Professor Alberto Benitez
Professor Alberto Benítez & GW Immigration Clinic Student-Attorneys Raisa Shah & Jennifer Juang-Korol Staff The Table @ Newcomer Fair!

3) W&M Law Clinic Wins 27 Cases

Professor J. Nicole Medved reports on LinkedIn:

Over the holidays, the Immigration Clinic received approval notices in TWENTY-SEVEN applications that we’ve filed in the last calendar year. 🎉  Among those 27 approvals were approvals for #asylum, #lawfulpermanentresidency, #DACA, #TPS, and #workpermits. It has been so exciting to see–and share–the fantastic news with our clients, students, and alumni who worked on these cases!

Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)
Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)

4) NDPA Superstar Kim Williams Triumphs Over Garland DOJ’s “Nexus Nonsense” In 1st Cir

From Dan Kowalski @LexisNexis:

Major CA1 Victory: Pineda-Maldonado v. Garland

http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/major-ca1-victory-pineda-maldonado-v-garland

“Ricardo Jose Pineda-Maldonado (“Pineda-Maldonado”) is a native and citizen of El Salvador. He petitions for review of the decision by the Board of Immigration Appeals (“BIA”) that denied his application for asylum and claims for withholding of removal and protection under the Convention Against Torture (“CAT”). We grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this decision.”

[Please read the entire 31-page decision.  It is a solid beat-down for the IJ and the BIA.  Hats way off to Kim Williams and team!  Listen to the oral argument here.]

Kim Williams
Kim Williams, Esquire
Rubin Pomerleau PC
PHOTO: LinkedIn

5) HRF’s Robyn Barnard Calls Out Biden’s Threat To Trash Asylum

Robyn Barnard
Robyn Barnard
Associate Director of Refugee Advocacy
Human Rights First
PHOTO: Linkedin

Robyn writes on LinkedIn:

Have been thinking a lot about this statement & questioning how we got here. Anyone who works in this space knows just how complicated our laws & system are, the challenges global crises present, all compounded by recent attempts to totally destroy our immigration system. We know this is hard. However, the President has had at his service very smart ppl, experts, not to mention those in NGO space w decades of experience who have provided him reams of recommendation papers from before he was elected President, all wanting to help him to succeed at making the immigration system more efficient, more fair, but I’d guess most also came out of 4 yrs of Trump wanting to ensure we treat ppl w dignity & respect their basic human rights. If only he would listen.

How did the President go from vowing to “restore asylum” & “stop kids in cages” to essentially trying to out-Trump Trump? I wish we had a President who had the political courage to stand by immigrants, to stand in public & declare why detention, border walls, & summary deportations don’t work, & to invest in humane & smart solutions. The truly enraging thing about this is he will never win in his gross political posturing despite throwing migrants under the bus, or more aptly–literally to the cartels–the Right will never be satisfied & now he has put himself on record as in favor of Trump’s policies. 

Shame. Shame on whoever had a hand in this hateful declaration and shame on the leader who put his name to it.

6) CEO Bill Penzy Likes & Appreciates Immigrants

Penzys Logo
Penzys Logo
FROM: Facebook

Penzy, CEO of Penzy’s Spices in Wauwatosa, WI (my home town — graduated from Tosa East in ‘66) writes:

And despite all the Republican anger, it really is okay to say you like what immigrants do and have always done for this country. So much hard work. So much tasty food. What’s not to like? They need somewhere their hard work can amount to something, and we have plenty of space, and more work to do than we can do ourselves..

Immigrants give us the chance to be kind, decent humans. Let’s be kind, decent humans.

Thanks for caring enough to cook and caring about so much more.

You are awesome,

Bill
bill@penzeys.com

 ************************

Even in a time of “politicos’ bipartisan national fear-mongering, irresponsibility, and trashing of human rights,” courageous NDPA “freedom fighters” still stand up for human dignity and the right to asylum! 

Three cheers for the good guys! 📣📣📣

🇺🇸 Due Process Forever!

PWS

02-28-24

🗽⚖️ PROVING OUR POINT, AGAIN: “Sir Jeffrey” & I Have Been Ripping The Garland BIA’s Contrived “Any Reason To Deny” Misinterpretations Of Nexus & PSG — 1st Cir. Is Latest To Agree With Us! — Espinoza-Ochoa v. Garland

Kangaroos
Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community: 

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-psg-and-nexus-victory-at-ca1—espinoza-ochoa-v-garland

“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Randy Olen!]

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

You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:

🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

🤯 MISFIRES: MORE MIXED MOTIVE MISTAKES BY BIA — “Expert” Tribunal Continues Underperforming In Life Or Death Asylum Cases! — Sebastian-Sebastian v. Garland (6th Cir.) — Biden Administration’s “Solution” To Systemic Undergranting Of Asylum & Resulting EOIR Backlogs: Throw Victims Of “Unduly Restrictive Adjudication” Under The Bus! 🚌🤮

How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system. 

It makes cases like this — which could  and should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket. 

This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General. 

Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!

🇺🇸 Due Process Forever!

PWS

12-28-23

  

🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

Four Horsemen
“Sir Jeffrey” tells us how to use “the law as a sword” to defend against the BIA’s anti-asylum precedent in M-R-M-S-. Don’t let yourself and your clients be “shredded and trampled” by BIA panels wielding deadly, hyper-technical, counterintuitive, overly restrictive asylum precedents designed to promote and support “any reason to deny!”
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.jeffreyschase.com/blog/2023/12/24/asylum-in-the-time-of-m-r-m-s-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Asylum in the Time of M-R-M-S-

Introduction

In 2017, while Matter of L-E-A-1 was pending before the BIA, I attended an immigration law conference at which Professor Jon Bauer posed the following “thought experiment”:

A Nazi official threatens to kill all the Jews in a town unless a Jewish criminal, who has committed several robberies and murders and is suspected to be hiding in the area, is turned over to the authorities or turns himself in.

Is this persecution on account of religion?

The answer is obviously yes. Those in the town find themselves at risk of persecution on account of their religion. It would seem impossible for anyone possessing knowledge of our asylum laws (or just plain common sense) not to understand this.

However, with its decision in Matter of M-R-M-S-,2 the Board of Immigration Appeals has managed to create a test for nexus that would lead to the opposite conclusion.

One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that; bemoaning the fact that regulations that are more than two years overdue could have prevented this; and suggesting that the correct course of action for the Attorney General to take at this point would be to vacate this decision in anticipation of said forthcoming rulemaking.

But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result. I hope that some of what follows will prove helpful, and that it will encourage further thought and conversation on this topic.

Legal Strategies in light of M-R-M-S-

  1. Distinguish your case based on the facts

In M-R-M-S-, the Board chose for its precedent a case surprisingly devoid of facts. The entire factual summary consists of three sentences. A criminal cartel forced the respondents off of their land “because the cartel wanted the land for its own purpose. The cartel killed the lead respondent’s grandson for unknown reasons, although the respondents believe it was related to the cartel’s efforts to obtain their land. The cartel also forced other families off of land in the same area.”

This summary makes no mention of how family membership might have been a factor; it only says the cartel wanted the land for its own unstated purpose. It can be argued that the decision simply establishes that cases asserting mixed motives need to present more than one motive.

Instead, the Board leaped to a much broader and more damaging conclusion that wasn’t even suggested by the above facts, namely, that targeting members of a family for purposes of achieving another non-protected ground renders the family membership “incidental or subordinate,” and thus lacking the nexus required for asylum or withholding of removal protection.

Tip: Distinguish your facts from those in M-R-M-S-.

Emphasize how family or another protected ground played a significant role in the applicant being targeted for persecution. Note that merely mentioning that other family members were also harmed does not in itself establish a nexus on account of family membership.

Tip: Employ the Board’s test in Matter of S-P- when applicable.

In Matter of S-P-,3, the BIA looked at when government prosecution might actually be persecution on account of political opinion. And one of the warning signs it mentioned occurs when the punishment is clearly out of proportion to the conduct in question. So under S-P-’s test, if someone charged with jaywalking is detained at length and beaten by the police, the reasonable conclusion is that the punishment wasn’t actually about the jaywalking.

One can transpose this approach to the particular social group consisting of family by arguing that the same logic applies to gang punishment for failing to pay extortion. Particularly where the amount being sought by the gang or cartel isn’t that much, when the response to the failure to pay is to threaten to severely harm or kill a family member of the target of extortion, a reasonable conclusion under S-P- would be that this isn’t simply about the money. A gang or cartel can seek a financial goal, but at the same time can develop an animosity against a family resistant to its demands.

Moving on, the use of the word “subordinate” in the Board’s most recent holding is of interest, for the following reasons.

  1. The fall and rise of the Board’s “subordination” criteria for nexus

In its first attempt to define the “one central reason” language adopted by Congress in 2005, the BIA in Matter of J-B-N- & S-M-4 recognized in the last paragraph of page 212 of that decision that the standard did not require a central reason to be “dominant” in relation to other reasons for persecution. In fact, in a footnote, the Board further explained: “The problem in classifying one motive as “dominant” or “central” is that it renders all other motives, regardless of their significance to the case, secondary and therefore ultimately irrelevant.”

Yet two pages after rejecting a hierarchical approach to nexus, the Board defined the new standard as a reason that “cannot be incidental, tangential, superficial, or subordinate to another reason for harm.”

The problem with the inclusion of the word “subordinate” is obvious. It means that once an adjudicator finds a reason they consider to be the dominant one, their inquiry is over, and, as the Board itself warned, all other motives become irrelevant.

The Third Circuit, in Ndayshimiye v. Attorney General of U.S.5 rejected the Board’s standard for precisely this reason: its use of the word “subordinate” was found by the court to be no different from the “dominance” test that the Board purported to reject. To quote the Third Circuit:

This plain language indicates that a persecutor may have more than one central motivation for his or her actions; whether one of those central reasons is more or less important than another is irrelevant. The BIA acknowledged this in refusing to define a central reason within the meaning of § 208 as a “dominant” motivation. Id. at 212. The same logic forbids an interpretation that would impose a mirror image of the rejected “dominance” test: the requirement that a protected ground, even if a “central” reason for persecution, not be subordinate to any other reason.

Interestingly, following this rejection of its standard, the BIA reacted by dropping the word “subordinate” from its stated legal standard.  For example, in a subsequent (2011) precedent, Matter of N-M-, 6 the Board cited its earlier decision in  J-B-N & S-M-, but made no mention of that case’s incidental/tangential/superficial/subordinate language at all. Rather, the Board said:

In cases arising under the REAL ID Act, the “protected ground cannot play a minor role in the alien’s past mistreatment or fears of future mistreatment.” Matter of J-B-N- & S-M-, 24 I&N Dec. at 214. Instead, a [noncitizen] must demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.7

The italicized sentence states a “but for” causation standard which we will discuss further below. In fact, it seems to be an identical standard to that employed by the Fourth Circuit, whose approach the Board criticized in M-R-M-S-.

Years later,  in the aforementioned Matter of L-E-A- (decided in 2017), the Board amended its earlier language in J-B-N- & S-N- as follows:

The protected trait, in this case membership in the respondent’s father’s family, “cannot play a minor role”—that is, “it cannot be incidental [or] tangential . . . to another reason for harm.”8

Notice how an ellipsis is used to drop the word “subordinate” from the definition. So the Board seemed to understand for quite some time that the legal standard it enunciated could not include a dominance test (although it would then proceed to apply a dominance test in practice, as numerous circuit court reversals have demonstrated)

But now, without explaining the reason for  its sudden reversal, the Board has in M-R-M-S- reverted to its original flawed standard.  Here’s the quote:

A protected ground that is “incidental, tangential, superficial, or subordinate to another reason for harm” does not satisfy this standard.  Matter of J-B-N- & S-M-, 24 I&N Dec. at 214. 9

Furthermore, the Board chose to reassert its dominance requirement in a case in which the facts mention only one reason, and a vague one at that – that “the cartel wanted the land for its own purpose.” A dominance test is meaningless where there is only one reason asserted for the persecution.

But what if the revived dominance test were to be applied to Prof. Bauer’s hypothetical? Presumably, the Board would find the dominant reason for the threatened persecution to be the Nazi authorities’ desire to bring a criminal to justice. The targeting of the suspect’s coreligionists as a means to achieve that primary objective would, under the Board’s test, become “subordinate” to that goal, and would thus render the murdering of the town’s Jews “irrelevant.” Applying the Board’s “logic,” religion would not be one central reason for the murders.

As the above example demonstrates, the Board’s test will lead to truly absurd results. It is therefore not surprising that the Board’s standard is at odds with the approach of most circuits.

  1. The reinstituted dominance test conflicts with most circuit case law

Tip: Argue the inapplicability of M-R-M-S- where it conflicts with prevailing circuit law.

While not exhaustive, the following selection of circuit court case law should provide a basis for arguing that the Board’s standard for determining nexus is inapplicable in many courts located within the jurisdiction of those circuits

Third Circuit

It should certainly be argued in cases arising within the jurisdiction of the Third Circuit that the new decision’s reiteration of the exact legal standard that was rejected in Ndayshimiye (as discussed above) means that M-R-M-S- cannot be followed. The BIA actually recognized the conflict in footnote 6 of its decision, stating:

Although the United States Court of Appeals for the Third Circuit generally agrees with the Board’s interpretation of the “one central reason” standard, it has rejected the requirement that a protected ground not be subordinate to another reason for harm. See Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 130–31 (3d Cir. 2009).

The Board thus seemed to acknowledge by way of this footnote the inapplicability of its decision in the Third Circuit.

Fourth Circuit

The BIA in M-R-M-S- does not contest that its requirement for nexus is at odds with the long-established “but for” standard employed by the U.S. Court of Appeals for the Fourth Circuit.

In Hernandez-Avalos v. Lynch,10 the Fourth Circuit explained that even though a gang threatened the petitioner for the purpose of recruiting her son, the applicant was nevertheless targeted “on account of” her family ties because her “relationship to her son is why she, and not another person, was threatened….”  The court has repeated the “why she, and not another person” test in other decisions.11

The Fourth Circuit has more recently pointed to an oft-repeated error of the Board in “incorrectly focusing on why the gang targeted Petitioner’s family, rather than on why they targeted Petitioner herself.”12  In another published decision, the Fourth Circuit stated that “‘once the right question is asked’ — that is, why was Petitioner being targeted — the conclusion is quite clear: ‘whatever [the gang]’s motives for targeting [her] family, [Petitioner herself] was targeted because of [her] membership in that family.’”13

The fact that the Board in M-R-M-S- states that it prefers the approach of the Tenth Circuit, which “does not agree with the Fourth Circuit’s approach,”14 does not change the fact that the standard enunciated in the above-captioned Fourth Circuit decisions remains the standard for nexus applicable in Immigration Courts and Asylum Offices located within that circuit’s jurisdiction.

Cases being heard remotely by an IJ located within the Fourth Circuit

A decision of the Fourth Circuit issued last year provides a strong argument for applying that court’s nexus standard in lieu of the M-R-M-S- approach in cases geographically outside of the circuit’s jurisdiction which are heard remotely by Immigration Judges sitting in Virginia, Maryland, or North Carolina.

In Herrera-Alcala v. Garland 15, the Fourth Circuit held that under a plain reading of the statute, jurisdiction is determined by the geographic location of the immigration judge at the time the judge completed the proceedings.

The BIA subsequently issued a conflicting precedential opinion, Matter of Garcia.16 But as the Fourth Circuit’s ruling in Herrera-Alcala was based on its clear reading of the statutory language, the lack of a finding of statutory ambiguity would preclude deference to the Board’s view under either Chevron or Brand X.

In cases in which the Immigration Judge is sitting within the Fourth Circuit while the respondent is appearing in an immigration court elsewhere, the argument should be made that Fourth Circuit case law should apply. Claims constructed using Fourth Circuit precedent should be presented below, as in case the claim is denied by the agency, the applicant will ultimately be able to seek review before the Fourth Circuit.

Cases arising under the jurisdiction of other circuits

Fifth Circuit

Outside of the obvious examples of the Third and Fourth Circuits, be highly aware of the case law of the prevailing circuit regarding nexus. Most circuits have rejected the Board’s approach to some degree. Furthermore, the BIA misrepresented the holdings in some of the circuit decisions it cited in M-R-M-S-, a point that should be brought to the attention of judges or asylum officers.

The Fifth Circuit provides us with an example. In M-R-M-S-, the BIA cited the Fifth Circuit’s decision in Guevara-Fabian v. Garland17 as an example of a court employing an analysis of nexus consistent with its own approach.18 However, the court in Guevara-Fabian simply found that there was substantial evidence that the petitioner was targeted “because she owned a profitable business,” and not due to her family membership. This is quite different from the Board’s holding that being targeted due to one’s family membership is insufficient to establish a nexus where such family-based targeting is used as a means to achieving another non-protected goal.

Furthermore, four days after the issuance of M-R-M-S-, the Fifth Circuit published its decision in Argueta-Hernandez v. Garland.19 The facts in that case did not involve a family-based particular social group, but in addressing the subject of nexus, the court’s opinion rejected the agency’s general approach of rejecting all but the dominant reason for persecution.

Specifically, the Fifth Circuit found that in concluding threats by MS-13 were motivated “by criminal intent, personal vendettas, or monetary gain, which do not establish the required nexus,” the BIA disregarded that the petitioner “needed only to present ‘some particularized connection between the feared persecution’ and the protected ground in which his application for relief relies.” The court then referenced an earlier decision in which it had rejected the Board’s employment of an “either-or” approach to nexus in a mixed motive case, and said that the Board had acted similarly here by suggesting that Argueta was targeted for economic reasons “instead” of for a protected ground.20

So in cases arising in the Fifth Circuit, it should be argued that Guevara-Fabian did not support the Board’s approach in M-R-M-S-, as it was distinguishable on its facts, and that the court’s subsequent rejection in Argueta-Hernandez of the type of dominance approach and “either-or” test employed in M-R-M-S- puts the Board’s view of nexus in conflict with circuit law.

Sixth Circuit

On December 8 (i.e. 7 days after the publication of M-R-M-S-), the U.S. Court of Appeals for the Sixth Circuit issued its decision in Sebastian-Sebastian v. Garland 21. In that case, the petitioner, who suffered domestic violence at the hands of her husband, and, following his death, at the hands of his mother, claimed persecution on account of particular social groups which included  “Guatemalan Chuj [w]omen in domestic relationships who are unable to leave,” and “Guatemalan Chuj [w]omen who are viewed as property by virtue of their positions within a domestic relationship.” But the IJ found, and the Board affirmed, that the abuser acted based on a personal vendetta, and therefore found no nexus to a particular social group.

As the record contained ample evidence that “cultural expectations dictated that a Guatemalan Chuj woman in her position—both viewed as property and unable to leave by virtue of her domestic relationship—must stay with her in-laws and have nowhere else to go,” the Sixth Circuit determined there was “sufficient evidence for the BIA to conclude that Sebastian-Sebastian’s membership in these groups ‘underlay[s] all of [her persecutors’] actions.’”22 The court thus concluded that the Board’s failure to consider whether, in light of the above, the personal motives and particular social group membership were “inextricably intertwined” constituted reversible error.

The Sixth Circuit thus held (post-M-R-M-S-) that even where the primary reason for the persecution is a non-protected one (in this case, personal animosity), the fact that membership in a particular social group put and kept the asylum applicant in harm’s way is sufficient to render it sufficiently intertwined to satisfy the “one central reason” test. I believe a strong argument can be made that applying this approach to a family-based PSG would require a finding that even if the ultimate motive is extortion, if family membership is what put and kept the asylum applicant in harm’s way, there is sufficient nexus.

Seventh Circuit

In Gonzalez Ruano v. Barr,23  the Seventh Circuit explicitly rejected an approach essentially the same to that underlying the Board’s decision in M-R-M-S-. The petitioner suffered persecution by a criminal cartel whose leader viewed the petitioner’s wife as “property” that he sought to “possess.” The petitioner thus argued that his familial relationship to his wife was at least one central reason for his persecution.

On review, the Seventh Circuit specifically rejected the government’s argument that the persecution of the petitioner “was simply a ‘means to an end,’ making [the petitioner]’s relationship to his wife incidental.”24 The court found support in the Fourth Circuit’s decision in Hernandez-Avalos v. Lynch, adopting the Fourth Circuit’s test under which a nexus exists because the petitioner’s “relationship to his wife was the reason he, and not someone else, was targeted.”25

As the Seventh Circuit is in accord with the Fourth Circuit’s test that specifically rejects the Board’s approach to nexus (a conflict readily admitted by the Board in M-R-M-S-), the Board’s nexus standard is necessarily inapplicable in cases in which Seventh Circuit case law applies. It should be emphasized that the Fourth Circuit’s decision in Hernandez-Avalos which the Seventh Circuit positively cites is the specific decision mentioned by the Board in M-R-M-S- as an example of how the Fourth Circuit’s approach differs from its own.26

Eleventh Circuit

The Eleventh Circuit in Perez-Sanchez v. U.S. Att’y Gen.27 also applied a “but for” approach to nexus in a case involving family, determining that the persecutor’s monetary motivation did not render the petitioner’s family membership merely incidental where a criminal cartel targeted the petitioner because his father-in-law owed the cartel money. This is the exact scenario the Board rejected in M-R-M-S-, in which a family member is targeted as a means to a monetary end.

However, exactly as the Fourth Circuit had done in Hernandez-Avalos, the Eleventh Circuit stated that “In Mr. Perez-Sanchez’s case, it is impossible to disentangle his relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin.” The court  concluded that “the family relationship was one central reason, if not the central reason, for the harm.”28

Thus, the M-R-M-S- standard is at odds with Eleventh Circuit case law as well.

Ninth and Second Circuits

The approach of these two circuits relates to the “but-for” standard. The Ninth Circuit applies a “but-for cause” test in determining nexus. As that court recently noted, to satisfy that standard, an asylum applicant “must first show that ‘the persecutor would not have harmed [her] if such motive did not exist,’… that is, but-for cause, see But-for Cause, Black’s Law Dictionary (11th ed. 2019) (“The cause without which the event could not have occurred.”).29

Interestingly, in M-R-M-S-, the BIA quoted this but-for cause language from Parussimova without mentioning that the standard was in conflict with its own.30

It should therefore be argued in cases arising in the Ninth Circuit that applying that court’s “but-for cause” test would lead to a quite different result than the standard enunciated in M-R-M-S-.

The Second Circuit’s standard is less clear, but the court seems to view the “one central reason” requirement an even lower bar for establishing nexus than a but-for cause test. In Quituizaca v. Garland,31 the court noted the need to predict future persecution in withholding of removal claims, as opposed to other areas of law that employ a but-for causation test to past actions only. The court noted that where an adverse action has already occurred, there is an implication that “whatever evidence to establish but-for causation or refute it exists too.”

By contrast, the court noted that because of the predictive nature of future persecution in withholding claims, “[a] but-for standard in this context would seemingly require the applicant have insight into the motivations of the hypothetical future persecutor that sufficiently removes any doubt that the persecutor would be motivated by anything else,” adding that “[a]t a minimum, the proof that can be marshalled to rectify past conduct appears to us distinct from that which would be needed to establish a persecutor’s potential future conduct.”

While the Quituizaca decision is not even mentioned in M-R-M-S-, the Board does reference another Second Circuit case, Garcia-Aranda v. Garland,32 but essentially misrepresents that decision’s holding. In Garcia-Aranda, the facts established that although family members had also been harmed, the petitioners were targeted for persecution because of their own perceived wealth. Whether or not they were related to others who suffered harm would not change the outcome. Thus, in Garcia-Aranda, the court did not address, much less reject, the proposition that no nexus is established under a Hernandez-Avalos type of fact pattern.

A quick note regarding the Tenth Circuit

M-R-M-S- arose within the jurisdiction of the Tenth Circuit, and the Board lauded that court’s decision in Orellana-Recinos v. Garland33 as setting forth its preferred standard for nexus.34

It is worth noting that in Orellana-Recinos, “Petitioners did not challenge, or even cite, Matter of L-E-A- in their brief to this court. And at oral argument they cited it as authority. As previously noted, they dispute only the BIA’s factual findings in their case, not the legal framework it applied.”35

  1. What about the standard applied in discrimination cases?

The Supreme Court recently addressed the question of nexus outside of the asylum context in Bostock v. Clayton County,36  a case involving employment discrimination under Title VII of the 1964 Civil Rights Act.  The Court explained in Bostock that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” (i.e. the standard used in asylum cases).

The Court continued that the standard requires a court to apply the “simple” and “traditional” “but-for” test.  As the Court explained, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”37

The Court recognized that the “but-for” standard is a “sweeping” one, acknowledging that “[o]ften, events have multiple but-for causes.”  The Court further observed that “[w]hen it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”38

This leads to the following question: if “on account of” is not a term specific to asylum, and if the Supreme Court has told us that there is a simple and traditional test for “on account of” that is none other than the “but-for” test being applied by several circuits as described above, can the BIA simply ignore this in creating its own definition for the term “on account of” applicable to asylum claims? M-R-M-S- makes no mention of Bostock. If the Board doesn’t believe that case to be applicable, why not explain its reasoning for reaching that conclusion?

Tip: There is thus an argument to be made in all jurisdictions that the Supreme Court’s standard in Bostock should be the prevailing one.

I have discussed Bostock and offered my views on its applicability to asylum in more detail here.

  1. Emphasize other BIA precedents

Even in the absence of conflicting circuit or Supreme Court case law, an Immigration Judge or asylum officer is left to sort through the several BIA precedents mentioned above. Matter of S-P- (which has not been overruled) did not conclude that because an asylum applicant faced criminal prosecution, there was nothing further to consider. Instead, the Board in that case set forth a test requiring adjudicators to continue their inquiry,  taking into account circumstantial evidence and applying common sense to see if another motive for the persecution might be inferred from the facts of record.

As noted above, Matter of N-M- set out a “but-for” standard that seems identical to the one employed by the Fourth Circuit. And even Matter of L-E-A- dropped the word “subordinate,” and thus the application of the dominance test, from its stated legal standard.

Tip: Note that these other BIA precedents remain binding as precedent.

These other cases should therefore be cited and explained, and the degree to which they conflict with M-R-M-S- should be emphasized. It can be argued that M-R-M-S-’s applicability should be limited to cases in which family members are merely mentioned in passing, without further elucidation from the record as to why family membership might have served as a reason for past or future persecution.

Conclusion

As the above hopefully demonstrates, there are plenty of bases to challenge the Board’s recent decision. In M-R-M-S-, the Board presented an approach to nexus that is at odds with the case law of the majority of circuits. The Board mischaracterized the holdings in a number of circuit court decisions, championed a decision of the Tenth Circuit in which the Board’s standard was conceded and thus not in dispute before that court, and completely ignored the Supreme Court’s analysis of the “on account of” standard without explaining why what the Court termed the traditional standard for nexus was distinguishable in the asylum context.

To reiterate, the proper thing for the Attorney General to do at this point is to certify the decision to himself, and vacate it pending anticipated rulemaking. In the meantime, it is hoped that some of the above points will receive serious consideration from asylum officers, Immigration Judges, ICE attorneys, and federal appellate courts.

Copyright Jeffrey S. Chase 2023. All rights reserved.

Notes:

  1. 27 I&N Dec. 40 (BIA 2017).
  2. 28 I&N Dec. 757 (BIA 2023).
  3. 21 I&N Dec. 486 (BIA 1996).
  4. 25 I&N Dec. 208 (BIA 2007).
  5. 557 F.3d 124, 129-30 (3rd Cir., 2009).
  6. 25 I&N Dec. 526 (BIA 2011).
  7. Id. at 531 (emphasis added).
  8. Matter of L-E-A-, supra at 44.
  9. Matter of M-R-M-S-, supra at 759 (emphasis added).
  10. 784 F.3d 944, 950 (4th Cir. 2015).
  11. See, e.g., Alvarez-Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019); Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017).
  12. Perez Vasquez v. Garland, 4 F.4th 213 , 222 (4th Cir. 2021).
  13. Hernandez-Cartagena v. Barr, 977 F.3d 316, 322 (4th Cir. 2020) (citing Salgado-Sosa v. Sessions, 882 F.3d 451, 459 (4th Cir. 2018)).
  14. M-R-M-S-, supra at 761.
  15. 39 F.4th 233 (4th Cir. 2022).
  16. 28 I&N Dec. 693 (BIA 2023).
  17. 51 F.4th 647, 648 (5th Cir. 2022) (per curiam).
  18. M-R-M-S-, supra at 760.
  19. No. 22-60307 (5th Cir. Dec. 5, 2023).
  20. Id., slip op. at 16-17 (citing Rivas-Martinez v. I.N.S., 997 F.2d 1143, 1145, 1147-48  (5th Cir. 1993) (remanding to BIA for consideration of mixed motives).
  21. No. 23-3059 (6th Cir. Dec. 8, 2023).
  22. Id., slip op. at 22 (quoting Al-Ghorbani v. Holder, 585 F.3d 980, 998 (6th Cir. 2009).
  23. 922 F.3d 346 (7th Cir. 2019).
  24. Id. at 355-56.
  25. Id. at 356.
  26. See M-R-M-S-, supra at 761 (stating that the Tenth Circuit does not agree with the Fourth Circuit’s approach in Hernandez-Avalos, and adding its opinion that the Tenth Circuit’s is the proper approach).
  27. 935 F.3d 1148 (11th Cir. 2019).
  28. Id. at 1158-59.
  29. Rodriguez Tornes v. Garland, 993 F.3d 743, 751 (9th Cir. 2021) (quoting Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).
  30. See M-R-M-S-, supra at 762.
  31. 52 F.4th 103, 112-13 (2d Cir. 2022).
  32. 53 F.4th 752, 758 (2d Cir. 2022).
  33. 993 F.3d 851 (10th Cir. 2021).
  34. M-R-M-S-, supra at 761 (stating “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm.
  35. Id. at 857.
  36. 140 S. Ct. 1731 (2020).
  37. Id. at 1739.
  38. Id.

DECEMBER 24, 2023

NEXT

Expert Guidance from the First Circuit

ARCHIVE

Blog | Archive | Press and Interviews | Calendar | Contact

Sign up with your email address to receive news and updates.

SIGN UP

We respect your privacy.

pastedGraphic.png

 

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

Reprinted by permission.

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

It’s very satisfying to see Jeffrey’s positive use of Matter of S-P-, a “Schmidt era” precedent in which I joined and which remains good law despite the current BIA’s often ignoring or misapplying it. It’s also a great example of the useful guidance flowing from “positive precedents” — those illustrating and promoting proper asylum grants — as opposed to the overwhelmingly negative tenor of today’s unduly restrictive BIA asylum precedents. 

As many of us often say, justice for asylum seekers and other migrants shouldn’t be this difficult in Garland’s courts. See also https://immigrationcourtside.com/2023/12/04/☠%EF%B8%8F🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

Even while the BIA tortures asylum law to make it more difficult to qualify, authorities in other “UN Convention nations” are moving in the opposite direction. For example, Switzerland recently joined Finland, Sweden, and Denmark in automatically granting asylum to Afghan women.  See, e.g., https://www.tortoisemedia.com/2023/12/19/switzerland-becomes-fourth-country-to-automatically-grant-asylum-to-afghan-women/. 

This approach is far more consistent with the Supreme Court’s generous guidance in INS v. Cardoza-Fonseca and the BIA’s own initial implementation of that standard in Matter of Mogharrabi, both of which are routinely ignored at EOIR today. (Indeed, if someone with the exact same facts as Mogharrabi applied today, it’s highly likely that the BIA would invent a host of bogus reasons to send him packing!)  It’s also a much more practical approach that can actually “streamline” the granting of more “first instance” cases by the Asylum Office, greater consistency, and lessening the need for petitions for review and “Circuit specific” strategies. 

While there is no “silver bullet” that will eliminate overnight a backlog built over years of neglect, active mismanagement, and poor performance at EOIR and DOJ, a new, functional, well-respected BIA of asylum expert judges unswervingly committed to due process, fundamental fairness, and best practices is an absolutely necessary first step toward regaining control over our asylum system without sacrificing the legal rights of asylum seekers. The system can’t start eliminating backlog until it ceases doing those things that build unnecessary backlog in the first place. 

In the meantime, this example of “law you can use” from “Sir Jeffrey” promises to be the “gift that keeps on giving” during what is sure to be a difficult upcoming year for refugees, asylum seekers, migrants, and their dedicated attorneys and representatives!

🇺🇸 Due Process Forever!

PWS

12-26-23

🤯 MISFIRES: MORE MIXED MOTIVE MISTAKES BY BIA — “Expert” Tribunal Continues Underperforming In Life Or Death Asylum Cases! — Sebastian-Sebastian v. Garland (6th Cir.) — Biden Administration’s “Solution” To Systemic Undergranting Of Asylum & Resulting EOIR Backlogs: Throw Victims Of “Unduly Restrictive Adjudication” Under The Bus! 🚌🤮

Four Horsemen
BIA Asylum Panel In Action — After three years of ignoring experts on how to fix asylum and the border, the Biden Administration appears ready to join GOP nativists in throwing vulnerable legal asylum seekers and their supporters “under the bus.”  Cartels and criminal smugglers undoubtedly are looking forward to “filling the gap” left by the demise of the legal asylum system! They will be “the only game in town’” for those seeking life-saving refuge! There is no record of increased cruelty and suspension of the rule of law “solving” migration flows, although an increase in exploitation and death of migrants seems inevitable. Perhaps, that’s just “collateral damage” to U.S. politicos.
Albrecht Dürer, Public domain, via Wikimedia Commons

 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0267p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-mixed-motive-sebastian-sebastian-v-garland

[T]he Board found that Sebastian-Sebastian failed to demonstrate a nexus between her particular social groups and the harm she faced. In its denial of CAT protection, the Board found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argues that the Board’s conclusions were not supported by substantial evidence on the record as a whole. Because the Board’s failure to make necessary findings as to the asylum and withholding of removal claims is erroneous, but its conclusion as to Sebastian-Sebastian’s CAT claim is supported by substantial evidence, we GRANT Sebastian-Sebastian’s petition for review in part, DENY in part, VACATE the Board’s denial of her application for asylum and withholding of removal, and REMAND to the Board for reconsideration consistent with our opinion.”

[Hats off to Jaime B. Naini and Ashley Robinson!  N.B., the motion for stay of removal was denied.  I have a call in to the attorneys to find out if she was removed…]

pastedGraphic.png

Ashley Robinson ESQ
Ashley Robinson ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Congrats to Jaime and Ashley!

Rather than looking for ways to restrict or eliminate asylum, Congress and the Administration should be concerned about quality-control and expertise reforms in asylum adjudication, including a long-overdue independent Article I Immigration Court! Once again, the BIA violates Circuit precedent to deny asylum.

The answer to systemically unfair, (intentionally) unduly restrictive interpretations, and often illegal treatment of asylum seekers by the USG should not be to further punish asylum seekers! It should be fixing the asylum adjudication system to comply with due process, fundamental fairness, best practices, and professionalism!

Casey Carter Swegman
Casey Carter Swegman
Director of Public Policy at the Tahirih Justice Center
PHOTO: Tahirih Justice Center

Here’s a statement from the Tahirih Justice Center about the disgraceful “negotiations” now taking place in Congress:

The Tahirih Justice Center is outraged by the news that the administration appears willing to play politics with human lives. These attacks on immigrants and people seeking asylum represent not simply a broken promise, but a betrayal and we urge the President and Congress to reverse course.

“I am gravely concerned that, if passed, these policies will further trap and endanger immigrant survivors of gender-based violence.  Selling out asylum seekers and immigrant communities under the guise of ‘border security’ in order to pass a supplemental funding package is absolutely unacceptable,” said Casey Carter Swegman, Director of Public Policy at the Tahirih Justice Center. “And we know the impact of these cruel, deterrence-based policies will land disproportionately on already marginalized immigrants of color. I urge the White House and Congress not to sell out immigrants and asylum seekers for a funding deal.”

Every day, people fleeing persecution – including survivors of gender-based violence – arrive at our border having escaped unspeakable violence. Raising the fear standard, enacting a travel ban, putting a cap on asylum seekers, and expanding expedited removal nationwide (to name just a few proposals that have been floated in recent days) will do nothing to solve the challenges at the southern border and serve only to create more confusion, narrow pathways to humanitarian relief, increase the risk of revictimization and suffering, and punish immigrants seeking safety and a life of dignity.

These kinds of proposals double down on the climate of fear that many immigrants in this country already face on a day-to-day basis and will disproportionately impact Black, Brown and Indigenous immigrant communities.Immigrants should not be met with hostile and unmanageable policies that violate their humanity as well as their legal rights. We can and must do better.

These are “negotiations” in which those whose legal rights and humanity are being “compromised” (that is, tossed away) have no voice at the table as politicos ponder what will best suit their own interests.

😎Due Process Forever!

PWS

12-12-23

🤯☠️🤮 BAD JUDGING TRIFECTA: BIA’s Poor Performance Tries The Patience Of The Ultra-Conservative 5th Circuit!

Three LemonsBy Auguste Renoir (1918} Public Realm
Three Lemons
By Auguste Renoir (1918}
Public Realm
The BIA pulls three lemons on an epic judging fail that left a sour taste in the mouths of Fifth Circuit Judges!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-reversal-and-victory-at-ca5-argueta-hernandez-ii

On July 10, 2023, a Fifth Circuit panel dismissed Mr. Argueta-Hernandez’ petition for review for lack of jurisdiction, 73 F.4th 300.

On Dec. 5, 2023 the panel (Higginbotham, Graves, and Douglas) granted rehearing, granted the petition, vacated and remanded:

“Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.”

[Hats way off to Alison Lo, Jonathan Cooper and Chuck Roth!]

Alison Lo, Esquire
Alison Lo, Esquire
Jonathan Cooper, Esquire
Jonathan Cooper, Esquire
Chuck Roth, Esquire
Chuck Roth, Esquire

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

Congrats to this all-star NDPA litigation team. Once again, the expertise and scholarship in asylum and immigration law is on the “outside,” the NDPA, rather than at EOIR where it is so much needed!

Judge Higginbotham is a Reagan appointee. Judge Graves was appointed by Obama. Judge Douglas is a Biden appointee.

Here’s what the “coveted trifecta of bad judging” looks like:

The BIA:

1) misapplied prevailing case law,

2) disregarded crucial evidence, and

3) failed to adequately support its decisions!

My only question is: Did they manage to get the ”A#” right?

Golden nugget: The 5th Circuit recognizes that under the Supremes’ decision in Cardoza-Fonseca: “A ‘reasonable degree’ [for establishing a “well founded fear”] means a ten percent chance.” This “seminal rule” is violated by BIA panels and Immigration Judges across the nation on a daily basis. It is also widely ignored by many Circuit panels.

Unlike the BIA, Judge Higgenbotham carefully and clearly explains how threats other than physical injury can amount to persecution — another “seminal rule” that too many EOIR adjudicators routinely ignore.

In sharp contrast to the BIA’s intentional “butchering” of the “mixed motive” doctrine in Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023), Judge Higgenbotham correctly articulates the meaning of “at least one central reason.” See https://immigrationcourtside.com/2023/12/04/☠️🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

He states:

By characterizing MS-13’s threats against Argueta-Hernandez and his family as
solely extortion, BIA disregards that he needed only to present “‘some
particularized connection between the feared persecution’” and the
protected ground in which his application for relief relies. . . . Such a rigorous standard would largely render nugatory the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).”).

Precisely! Ignoring Cardoza-Fonseca and their own binding precedent in Matter of Mogharrabi is what the BIA does frequently in “manipulating the nexus requirement” to deny meritorious claims to qualified refugees who face real harm! It’s all part of the toxic anti-asylum bias and “any reason to deny culture” that still permeates EOIR under Garland!

The BIA is not allowed to “presume,” as they effectively did in M-R-M-S-, the lack of qualifying motivation in “family based” psg cases and place an undue burden on the respondent to “prove” otherwise. 

The panel also reams out the BIA for failure to follow basic rules and precedents requiring a separate CAT analysis.

Unlike the legal gobbldygook, obfuscation, doublespeak, and “canned” language that plagues many BIA opinions, Judge Higginbotham offers a clear, understandable, clinical explanation of asylum law and how it should be applied to what is actually a recurring situation in asylum law! 

Reading this very clear opinion, I couldn’t help but feel that it was a panel of “general jurisdiction” Federal Judges from a so-called “conservative Circuit” who understood the complexity and nuances of asylum law, while the BIA Appellate Judges were the “rank amateurs.” This reflects a criticism oft made by my Round Table colleague Hon. “Sir Jeffrey” Chase  that EOIR’s asylum training is grotesquely substandard — far below that readily available in the “private/NGO/academic” sector! What possible excuse could there be for this ongoing travesty at DOJ?

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges. His consistent, outspoken criticism of EOIR’s poor asylum training is proving all too true on a daily basis!

 

AG Garland continues to show a truly (and disturbingly) remarkable tolerance for poor judicial performance by his subordinates at the BIA. At the same time, he shows little, if any, concern for the deadly devastating impact of that bad judging on human lives and the way it corrodes our entire legal system!

The glaring, life-threatening legal and operational problems at EOIR are solvable. We should all be asking why, after three years in office, a Dem Administration has made such feeble efforts to bring long overdue leadership, substantive, and operational changes to “America’s worst court system?” Well into what was supposed to be a “reform” Administration, EOIR remains a steeped in the “culture of denial and bias against asylum seekers” actively furthered by the Trump Administration and NOT effectively addressed by Garland (although he concededly has made a few improvements)!

🇺🇸 Due Process Forever!

PWS

12-06-23

☠️🤯 BIA TRASHES NORMAL LEGAL RULES OF CAUSATION, JETTISONS 4TH CIR. PRECEDENT, TO DENY FAMILY-BASED PSG CASE, THE LATEST ANTI-ASYLUM ZNGER FROM FALLS CHURCH! — Family Targeted By Gangs Seeks Protection, Finds Only Rejection From BIA! —  Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023)

Four Horsemen
BIA Asylum Panel In Action. The BIA’s “take no prisoners” approach to asylum law has endangered asylum seekers lives without deterring them from applying! The BIA’s convoluted approach to asylum law is one factor making hearings for unrepresented applicants inherently unfair!
Albrecht Dürer, Public domain, via Wikimedia Commons

BIA HEADNOTE:

If a persecutor is targeting members of a certain family as a means of achieving some

other ultimate goal unrelated to the protected ground, family membership is incidental or

subordinate to that other ultimate goal and therefore not one central reason for the harm.

Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reaffirmed.

PANEL: MALPHRUS, Deputy Chief Appellate Immigration Judge,

CREPPY and PETTY, Appellate Immigration Judges.

 

OPINION BY: JUDGE GARRY MALPHRUS, Deputy Chief Appellate Immigration Judge

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsInVybCI6Imh0dHBzOi8vd3d3Lmp1c3RpY2UuZ292L2Q5LzIwMjMtMTIvNDA2OC5wZGYiLCJidWxsZXRpbl9pZCI6IjIwMjMxMjAxLjg2NDc1MjkxIn0.q_Zj4XKDQU56vCbvWbRgEZ-m1xhrXiZN-g-3R6TPtX0/s/500473331/br/232067904503-l

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

Let me explain the BIA’s rule:

1) In any “mixed motive” case, EOIR will find that the “non-covered motive” is primary and all others are “tangental” so that the claim will be denied.

2) EOIR will ignore “but for,” “proximate cause,” and any other established legal rules of causation to maximize asylum denials.

3) Facts are irrelevant unless they support denial.

In its rush to deny, the BIA basically invents a “presumption” that family based persecution is “tangential” to some other non-qualifying ground. The respondent then must “establish, by direct or circumstantial evidenc, that their family membership is more than incidental, tangential, superficial, or subordinate to other motives.”

When Congress added the “at least one central reason” language in 2005, they clearly intended to preserve a robust “mixed motive” doctrine by indicating that there could be “more than one” central motive. The BIA, however appears to be strangling the “mixed motive” language by intentionally, and often artifically, “subordinating” qualifying motives to non-qualifying ones!

And, of course, faced with a choice of adopting Circuit law that protects or that which rejects, the BIA invariably chooses the interpretation least favorable to the asylum applicant, as they did here. 

I’m not the only member of the Round Table to remark on the BIA’s questionable performance.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Judge “Sir Jeffrey” Chase says:

“This holding is contrary to asylum law generally and to multiple Fourth Circuit holdings to the contrary. I would also argue that it contradicts Second Circuit case law, and the Supreme Court’s holding regarding the meaning of “on account of” in Bostock v. Clayton County.”

Lory Rosenberg
Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC

Former BIA Appellate Judge Lory D. Rosenberg quipped:

“Don’t confuse me with the facts.”

Hon. Susan G. Roy
Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

Retired Judge Roy said:

“This isn’t good—another Friday afternoon surprise!”

The poor performance of the BIA in establishing asylum precedents is a major contributing factor to disorder at the border and a dysfunctional, overly complicated, unduly restrictive, hopelessly backlogged, fundamentally unfair asylum adjudication system! 

🇺🇸 Due Process Forever!

PWS

12-04-23

☠️👎🏼 ANOTHER SUPER-SHODDY PERFORMANCE BY BIA ON CENTRAL AMERICAN ASYLUM OUTED BY 9TH CIR. — Reyes-Corado v. Garland

Four Horsemen
BIA Asylum Panel In Action. It’s hard to ignore the BIA’s violent, deadly, abuse of asylum seekers, particularly those of color. But, somehow, Merrick Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and other DOJ officials manage to look the other way, as do Congressional Dems! Too busy fecklessly complaining about Justice Clarence Thomas to look at their own house?
Albrecht Dürer, Public domain, via Wikimedia Commons

SUMMARY** Immigration

The panel granted a petition for review of the Board of Immigration Appealsdenial of Francisco Reyes-Corados motion to reopen removal proceedings based on changed circumstances, and remanded.

The Board denied reopening based, in part, on Reyes- Corados failure to include a new application for relief, as required by 8 C.F.R. § 1003.2(c)(1). The government acknowledged that under Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020), the Board erred to the extent it relied on Reyes- Corados failure to submit a new asylum application for relief. Here, however, unlike in Aliyev, Reyes-Corado did not include his original asylum application with his motion to reopen. Consistent with the plain text of § 1003.2(c)(1) and various persuasive authorities, the panel held that a motion to reopen that adds new circumstances to a previously considered application need not be accompanied by an application for relief.

The Board also denied reopening after concluding that Reyes-Corado did not establish materially changed country conditions to warrant an exception to the time limitation on his motion to reopen. Reyes-Corado initially sought asylum relief based on threats he received from his uncles family members to discourage him from avenging his fathers murder by his uncles family. The Board previously concluded that personal retribution, rather than a protected

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

REYES-CORADO V. GARLAND 3

 ground, was the central motivation for the threats of harm. In his motion to reopen, Reyes-Corado presented evidence of persistent and intensifying threats.

As an initial matter, the panel explained that the changed circumstances Reyes-Corado presented were entirely outside of his control, and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Reyes-Corados claims for relief because they rebutted the agencys previous determination that Reyes-Corado had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group. The panel explained that the Boards previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Reyes-Corados family against his uncles family for at least fourteen years after Reyes-Corados fathers murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Reyes-Corados evidence was not qualitatively different than the evidence at his original hearing.

The panel also declined to uphold the Boards determination that Reyes-Corado failed to establish prima facie eligibility for relief because Reyes-Corados new evidence likely undermined the Boards prior nexus finding, and the Board applied the improperly high one central reason” nexus standard to Reyes-Corados withholding of removal claim, rather than the less demanding a reason” standard.

4 REYES-CORADO V. GARLAND

 The panel remanded for the Board to reconsider whether Reyes-Corado established prima facie eligibility for relief and to otherwise reevaluate the motion to reopen in light of the principles set forth in the opinion.

COUNSEL

David A. Schlesinger

(argued), Kai Medeiros, and Paulina

Reyes, Jacobs & Schlesinger LLP, San Diego, California, for Petitioner.

 

Enitan O. Otunla (argued), Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C.; for Respondent.

OPINION

KOH, Circuit Judge:

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

Congrats to David A. Schlesinger & colleagues!

I’ve often discussed  EOIR’s all-too-frequent use of bogus nexus determinations – basically turning normal legal rules on causation on their head – to deny protection to bona fide refugees, particularly those from Latin America and Haiti.

There is a growing body of evidence that EOIR is systematically unfair to Central American asylum applicants. But, Garland, his lieutenants, and Congressional Dems have basically looked the other way as this stunning, widespread denial of due process and equal protection under our Constitution continues to unfold in plain view on their watch! Why? Where’s the dynamic, values-based, expert, ethical leadership we should expect from a Dem Administration?

This particular example of substandard “judging” literally reeks of pre-judgement and “endemic any reason to denialism!”

Dems wring their collective hands about Justice Clarence Thomas, who is essentially unaccountable and untouchable! But, they have done little or nothing to address serious competence, bias, and ethical issues festering in a major “life or death” Federal Court System they totally control!

Lots of “talk,” not much “walk” from Dems!

🇺🇸 Due Process Forever!

PWS

08-15-23

🗽 BORDER: WashPost’s Maria Sacchetti’s Nuanced Report Is Well Worth A Read: “The perceived success of Biden’s approach depends on which side of the border the migrants are on.” — Right to apply for asylum is a “simple rule” that politicos of both parties lack the will & skill to follow!🤮

Maria Sacchetti
Maria Sacchetti
Immigration Reporter, Washington Post

https://www.washingtonpost.com/immigration/2023/07/18/border-asylum-us-mexico-biden-legal/

Maria writes:

. . . .

Federal law says anyone fleeing persecution may request asylum once they reach U.S. soil, no matter how they got there. Successive administrations have attempted to restrict that simple rule, however, desperate to reduce record numbers of crossings that have overwhelmed the immigration system, leaving many to live for years in the United States without a decision in their cases.

. . . .

One border, two realities

The perceived success of Biden’s approach depends on which side of the border the migrants are on.

Brownsville, an American city of 200,000 on the other side of the Rio Grande from Matamoros, Mexico, is officially under a state of emergency. But that emergency has dissipated in recent months.

The streets are quiet, thanks to a 70 percent drop in illegal border crossers since the new asylum rule and other Biden policy changes took effect. City workers greet the relatively small number of newcomers released from holding facilities and escort them to a curtained-off parking garage and to the first bus out of town.

In Matamoros, however, migrants trying to navigate the new rules are squeezing into shelters, sharing hotel rooms, curling up in a large camp on the dry riverbank or under pop-up tents at a grimy former gas station.

On a pedestrian bridge one hot morning in late June, Mexican authorities shooed away those who did not have an appointment through the app — including some Mexicans, even though the rule change is not supposed to apply to them.

“Let’s go, please,” one officer said to migrants who gathered at the Matamoros edge of the bridge. “Now.”

Advocates for immigrants say it is unlawful for officials to block migrants from crossing borders in search of protection — and unfair to presume they can easily navigate U.S. asylum law and appointments via smartphone apps. The process of requesting asylum is supposed to be simple, they said, because lives are at stake.

But advocates are powerless to navigate around the new rules until the court case is resolved.

In the sweltering heat one recent day, Christina Asencio, a lawyer with Human Rights First, tried to explain to migrants in the Matamoros camps how the system is supposed to work.

. . . .

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

Read Maria’s full article, one of the more balanced treatments I have encountered, at the link.

A few thoughts:

  • Even this fine article misses the biggest point: Most asylum seekers want to “do things the right way.” But there has been no “right way” for years because of  the unlawful and bogus use of Title 42 by both the Trump and Biden Administrations. It’s still being unlawfully restricted by the arbitrary Biden Administration regulations. Yet, remarkably, asylum seekers are willing to risk their lives waiting in Mexico for an opportunity to apply in an orderly, legal manner under a broken and biased system unfairly “rigged” against them! THAT’S the “real big takeaway” about the reduction in unauthorized border crossings. It’s one that that nobody except experts and advocates are willing to fully acknowledge! Indeed, during the Title 42 charade, an asylum seeker’s only chance of getting into the system was to cross without authorization. Otherwise, they would have been summarily returned without any chance to present their claims.
  • Some asylum seekers will qualify for protection, some won’t. That’s what the legal, asylum system is supposed to determine — in a fair, expert, and timely manner. That our asylum system has become dysfunctional and ludicrously backlogged lies squarely with poor performance by Congress, the Executive, and the Courts, in many cases “egged on” by right-wing nativists’ myths and distortions. Blaming the victims — asylum seekers — for massive USG failures over decades is totally disingenuous!
  • Statistically, it’s true that most asylum applicants from the Southern Border do not achieve asylum under our current dysfunctional system. But, the question we should be asking is why aren’t more qualifying, given the horrible conditions in “sending countries” and the generous legal standards — including a presumption of future persecution based on past persecution — that are supposed to apply, but often don’t in practice. 
  • For years, the Executive, through its captive EOIR “courts,” has been unfairly manipulating and intentionally misapplying the law, as well as misreading and ignoring evidence, to achieve unrealistically high asylum denial rates for applicants of color, particularly those arriving at our borders from Latin American and Haiti. See, e.g., https://immigrationcourtside.com/justice-betrayed-the-intentional-mistreatment-of-central-american-asylum-applicants-by-the-executive-office-for-immigration-review/; https://immigrationcourtside.com/appellate-litigation-in-todays-broken-and-biased-immigration-court-system-four-steps-to-a-winning-counterattack-by-the-relentless-new-due-process-army/. This continues to happen, as documented by the unusually large number of rebukes by Article III Courts (even some of the most conservative) of the flawed decision-making coming out of Garland’s broken EOIR. See, e.g., https://immigrationcourtside.com/2023/07/14/🌊-tsunami-of-bad-☠️-bia-decisions-hits-garlands-doj-wrong-on-nexus-4th-2-1-wrong-on-nta-4th-2-1-wrong-on-agfel-8th-wrong-on-past-political-per/.
  • One of the most egregious EOIR-led anti-asylum “scams” is abuse and misuse of the “nexus” requirement for asylum to send legitimate refugees back into harm’s way. See, e.g., immediately preceding reference. “Persecution” must relate to race, religion, nationality, membership in a particular social group, or political opinion. But, the asylum statute does NOT require that that be the sole or even the primary motivation for the persecution. It just has to be “at least one central reason.” And, usually, persecution is carried out by the persecutor for a variety of reasons. It’s called “mixed motive analysis” and EOIR Judges, particularly at the precedent-setting BIA, routinely ignore or mis-apply it to deny grantable claims. 
  • Harm resulting from things like “work, poverty, natural disaster, and bad governments” does not automatically qualify an individual for asylum. But, contrary to what many suggest, neither do these circumstances preclude asylum. For example, while a “natural disaster” might not make an individual a “refugee” under law, if that individual were forced to live in a known danger zone or denied life-saving assistance at least in part because of religious, ethnic, or political identity, that WOULD qualify. Was the infamous “Kristallnacht” in Nazi Germany systemic persecution of Jews for ethic and religious reasons? Or was it “mere vandalism, random violence, and hooliganism?” I would say clearly the former. But, I can imagine today’s BIA attributing it to the latter, to deny protection to a large group of individuals. I adjudicated thousands of asylum cases as both a trial and an appellate judge during 21 years at EOIR. I found that harm where a “protected ground” was “at least one central reason” was the rule, not the exception as EOIR tries so hard to make it.
  • Other often “trumped up” methods EOIR uses for denying valid asylum claims include bogus “adverse credibility” findings; unreasonable “corroboration” requirements; fabricated “reasonable internal relocation” opportunities; nonsensical, ahistorical “changed circumstances” conclusions; ignoring or misconstruing expert testimony; “selective reading” or mis-reading of country background reports; coercive detention in substandard conditions; and restricting or limiting access to counsel. If you think this sounds like a national disgrace on “Garland’s watch,” you’re absolutely right!
  • Undoubtedly, under a properly functioning system, with true expert adjudicators and judges — those whose career experiences demonstrated sound scholarship and understanding of the life-threatening circumstances of asylum seekers and the inherent limitations of both the Asylum office and EOIR — many more asylum cases from those applying at the Southern Border and elsewhere would be granted. So, Government policies based largely on “deterrence” or on the self-fulfilling prophecy that “few will qualify” should be viewed as fatally flawed. Without a better EOIR and an asylum adjudication system run by well-qualified experts, we can’t possibly formulate rational and humane border policies or indeed workable immigration policies at all. Tragically, we’re a long way from that right now!

🇺🇸 Due Process Forever!

PWS

07-19-23

🌊 TSUNAMI OF BAD ☠️ BIA DECISIONS HITS GARLAND’S DOJ! — WRONG On Nexus (4th, 2-1); WRONG On NTA (4th, 2-1); WRONG On Agfel (8th); WRONG On Past Political Persecution In Cameroon (5th); WRONG On Experts (1st)!

Tsunami
Tsunami of bad BIA decisions hits as Garland ignores needed housecleaning and due process reforms @ EOIR!
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

1. NEXUS

CA4 on Nexus, Religious Persecution: Chicas-Machado v. Garland

https://www.ca4.uscourts.gov/opinions/211381.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-religious-persecution-chicas-machado-v-garland

“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”

[Hats off to Daniel Thomann!  Listen to the oral argument here.]

Daniel Thomann ESQ
Daniel Thomann
ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.comhttps://www.ca4.uscourts.gov/opinions/211381.P.pdf

2. NTA

CA4 on Defective NTA: Lazo-Gavidia v. Garland

https://www.ca4.uscourts.gov/opinions/202306.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-defective-nta-lazo-gavidia-v-garland

“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”

[Hats off to Glenn Fogle!  Listen to the oral argument here.]

Glenn Fogle ESQ
Glenn Fogle ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

3. AgFel

CA8 on Shoplifting: Thok v. Garland

http://media.ca8.uscourts.gov/opndir/23/07/222508P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca8-on-shoplifting-thok-v-garland

“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”

[Hats off to Jaime Arango!  Listen to the oral argument here.]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

4. Past Political Persecution In Cameroon

Unpub. CA5 Victory: Naah v. Garland

https://www.ca5.uscourts.gov/opinions/unpub/20/20-61059.0.pdf

“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”

[Hats off to Danielle Beach-Oswald!]

Danielle Beach-Oswald ESQ
Danielle Beach-Oswald ESQ

 

 

Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:

5. Experts

Unpublished 1st Cir. Victory [Experts]

[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!

More to follow. We continue to make a difference!

Best, Jeff

 

I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.

1st on Experts

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

Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?

In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process. 

As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.

Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.

Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!

As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.

If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!

“Catch 22” — the applicant loses either way!

Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.

The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!

Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”

Congrats, Danielle, and thanks for all you do!

Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system! 

What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?

🇺🇸 Due Process Forever!

PWS

07-14-23

🏴‍☠️ FOURTH FINDS BIA’S NEXUS ABUSE CONTINUES UNDER GARLAND 🤮 — Dem AG Permits His “Courts” To Engage In Specious “Any Reason To Deny” Misconduct That Artificially Suppresses Asylum Grants!  ☠️ — Marvin A.G. v. Garland (published)!

Four Horsemen
BIA Asylum Panel In Action — Garland, a former Article III Appeals Judge, employs appellate judges who routinely misconstrue asylum law to wrongfully deny legal protection, thus artificially suppressing what should be much higher success rates for asylum seekers in a functional legal system properly applying asylum law! The law and precedents establishing a properly generous application of the well-founded fear standard for asylum are routinely ignored or disingenuously avoided by Garland’s biased anti-asylum “courts!” BIA panels routinely butcher “mixed motive” cases to deny asylum to deserving refugees!
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-marvin-a-g-v-garland

“Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. … We thus conclude that the IJ erred by applying an incorrect standard in the nexus analysis, and that the Board abused its discretion because it “compounded the [IJ’s] error by failing to recognize it.” Perez Vasquez, 4 F.4th at 223. In addition, both the IJ and the Board failed to address substantively the petitioner’s testimony about the threat of future persecution. … The Board thus applied the incorrect legal standard for the nexus analysis and arbitrarily disregarded relevant evidence. Accordingly, we hold that the Board abused its discretion in denying the petitioner’s motion to reconsider his asylum and withholding of removal claims, and we remand for the agency to “meaningfully consider [the petitioner’s] evidence” under the correct legal standard.”

[Hats off to Eric Suarez!]

Eric Suarez
Eric Suarez ESQUIRE
Partner
Sanabria & Associates
PHOTO: Firm website

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

EOIR judges and the BIA routinely butcher “mixed motive” cases like this one! This endemic problem at EOIR badly distorts asylum adjudication nationwide, produces false statistics suppressing the significant number of wrongful asylum denials (particularly targeting asylum applicants of color for unfair, unjust adjudications), and refutes the Article III’s disingenuous treatment of the BIA as an “expert tribunal” entitled to Chevron deference. In that way, it seriously undermines the integrity of our entire judicial system!

In this case, counsel specifically pointed our the BIA’s errors in a timely motion to reconsider, only to have it “blown off” with basically fabricated boilerplate BS!  

The petitioner appealed the IJ’s decision to the Board. After the Board affirmed the IJ’s conclusions and dismissed the appeal, the petitioner filed a motion to reconsider. The Board denied the motion, concluding that the IJ did not clearly err in its nexus determination, and reiterating the IJ’s conclusion that family membership was “incidental or subordinate” to the other reasons the gang targeted the petitioner, namely, for monetary gain and gang recruitment.

Another of my favorite parts of this decision addresses the BIA’s pronounced tendency to invent specious “non-protected” reasons for the persecution and then dishonestly characterize that at the sole or primary motivations. 

The Board’s cursory conclusion that the gang had targeted the petitioner for “monetary gain and gang recruitment” does not remedy the Board’s error. Indeed, we fail to see how family membership necessarily was subordinate to these other motivations when the sole basis the petitioner presented for his fear of future persecution was that the gang would target him due to his relationships with his siblings.

Friends, this is NOT the competent, impartial, professional, expert adjudication that due process and fundamental fairness requires! Nor is it the improvement from Trump’s institutionalized White Nationalist approach to asylum and immigration promised by Biden and Harris during their 2020 campaign! It’s basically a “bait and switch” by Dems! Additionally, it sets a horrible example for Immigration Judges (many of whom lack relevant expertise in asylum law) and Asylum Officers nationwide.

Garland’s has refused to “clean house” and employ solely competent, unbiased, impartial asylum experts as BIA Appellate Immigration Judges, selected on a merit basis from among those possessing the requisite practical asylum expertise, temperament, and  widely-acknowledged qualifications for these critically important judgeships. 

Garland’s failure to perform his job, in turn, is having a deleterious effect on every aspect of our asylum, protection, and immigration systems and is undermining the entire rule of law. It also promotes false narratives about asylum seekers and inhibits effective representation of this vulnerable and deserving group. It’s wrong; it’s inexcusable, and it’s a “big deal!’

I leave you with this thought from an expert who actually practices before EOIR and understands what competent asylum adjudication should be:

We really do need better judges at the BIA. [Hope that this] decision that will make a dent in their current dysfunction.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges — Maybe HE should be in charge of selecting and training BIA Appellate Immigration Judges!

Or as my Round Table colleague Hon. “Sir Jeffrey” Chase suggests:

Maybe the Board should read my article on the proper test for nexus:

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

Great idea! But, don’t hold your breath!

SeniorCircuit Judge Barbara Milano Keenan wrote the opinion, in which Judge Thacker and Judge Heytens joined.

🇺🇸 Due Process Forever!

PWS

06-28-23

 

 

⚖️🧑‍⚖️ IMMIGRATION COURTS IN CRISIS = DENIAL OF DUE PROCESS FOR INDIVIDUALS  — NY Times Article Quoting Round Table’s Judge Eiza Klein & Charles Honeyman, Also NDPA Officials, Judge Mimi Tsankov and Judge Samuel Cole! — PLUS BONUS COVERAGE: My Latest “Mini Essay” — “EOIR ABUSES ASYLUM SEEKERS”

Hon. Eliza Klein
Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times

https://www.nytimes.com/2023/05/12/us/politics/immigration-courts-delays-migrants-title-42.html?smid=nytcore-ios-share&referringSource=articleShare

Zolan Kanno-Youngs reports for the NYT:

. . . .

Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.

That will leave some older cases to languish even longer, she said.

“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.

“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”

While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.

Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.

. . . .

Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.

“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”

. . . . .

Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.

When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.

In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.

. . . .

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

Read the full article at the link.

 

EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Courtside Exclusive

May 16, 2023

While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/

Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher. 

Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials. 

For instance, in FY 2012, approximately 55% of asylum claims decided by EOIR on the merits were granted. https://trac.syr.edu/immigration/reports/306/. While there was no discernible worldwide improvement in human rights conditions in the following years, IJ asylum grant rates cratered during the Trump years, reaching a low of 29% in FY 2020, barely half the FY 2012 level. https://trac.syr.edu/immigration/reports/668/#:~:text=While%20asylum%20grant%20rates%20declined,after%20President%20Biden%20assumed%20office.%20That%E2%80%99s%20a%20decline%20of%20nearly%2050%%20since%20the%20FY%202012%20high.

I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.

Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR. 

Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.

Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.

The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous. 

In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.

There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.

The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.

Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed. 

Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.

So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.  

Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems. 

Recently, a veteran practitioner before EOIR wrote the following:

In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.

Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.

There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!

🇺🇸Due Process Forever!

PWS

05-16-23

        

 

🤪TWILIGHT ZONE: IN THE SURREAL WORLD OF EOIR, IT’S UP TO NDPA ADVOCATES & CIRCUITS TO ENFORCE LEGAL STANDARDS ON THE “ANY REASON TO DENY” BIA! — Will Lawless, “Trump-Packed Parody Of A Court System” Be Major Legacy Of Former Federal Judge Merrick Garland? — BIA Goes Down Again In 9th Cir!👎🏼

Twilight Zone
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where judges operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world!
The Twilight Zone Billy Mumy 1961.jpg
:PHOTO: Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

CA9 on Standard of Review: Umana-Escobar v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/17/19-70964.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-standard-of-review-umana-escobar-v-garland#

“Josue Umana-Escobar petitions for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenges the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the defective NTA claim for lack of jurisdiction and deny the petition as to the CAT claim. We grant the petition and remand as to the administrative closure issue, given the government’s recommendation that we should do so based on an intervening decision by the Attorney General. We also grant the petition and remand as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm.”

[Hats off to Sabrina Damast and Jose Medrano!]

 

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

The initial hearing was in 2013, merits hearing in 2017, Circuit remand in 2023. After a decade, a fairly routine asylum case is still unresolved! 

This case probably shouldn’t even be in Immigration Court, as it was affected by “Gonzo” Sessions’s wrong-headed, backlog-building, interference with administrative closing, later reversed by Garland, but not until substantial, systemic damage to EOIR had already been caused.

When it’s “any reason to deny, any old boilerplate gets by!”🤬 Bogus “no nexus” findings — often ignoring the “at least one central reason” standard and making mincemeat out of the “mixed motive doctrine” — are a particular EOIR favorite! That’s because they can be rotely used to deny asylum even where the testimony is credible, the harm clearly rises to the level of persecution, is likely to occur, and relocation is unreasonable! 

In other words, it allows EOIR to function as part of the “deterrence regime” by sending refugees back to harm or death. What better way of saying “we don’t want you” which has become the mantra of Biden’s “Miller Lite” policy officials! 

GOP, Dems, neither are competent to run a court system. That’s why we need an independent Article I court!⚖️

🇺🇸 Due Process Forever!

PWS

03-20-23

🔌👎🏽GARLAND MUST “PULL THE PLUG” ON HIS FAILED APPELLATE COURT — BIA “DEFIES” EVIDENCE TO MOCK DUE PROCESS & DENY ASYLUM, SAYS 3RD CIR! — OGEE v. AG (Ghana)

Kangaroos
What kind of “judges” would “defy” the evidence of record to wrongfully deny asylum?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Read the 3rd Circuit’s (unfortunately) unpublished decision here:

https://www2.ca3.uscourts.gov/opinarch/202423np.pdf

Key quote:

The IJ credited Bimpong’s testimony, and the BIA did not disturb this finding. Yet the BIA concluded that Bimpong’s persecution was a personal land dispute that lacked any nexus to his membership in the Ashanti tribe. In doing so, the BIA deferred to the IJ’s conclusion that “the record is devoid of any evidence indicating that the [Enzema] Tribe targeted the applicant because of membership in the Ashanti Tribe.” AR 97 (emphasis added). That conclusion defies the record, which is replete with evidence that Bimpong’s tribal affiliation was a central reason for his persecution. See, e.g., AR 157, 162-63, 167–68, 185, 596, 598. For example, Bimpong testified that members of

the Enzema “did not want the land that [he] possessed to be owned by non-members of 4

the Enzema tribe,” AR 596, and that he “was a target of persecution because of [an] intertribal dispute between the Enzema tribe and Ashanti tribe.” AR 598.

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

Typical BIA BS prejudged, form denial “boilerplate.” “Devoid of evidence” — gimmie a break! We tried (obviously unsuccessfully) to eliminate this type of non-analytical nonsense several decades ago. It’s indicative of a totally broken system that is unfair and biased against migrants! Why is Garland allowing this continuing systemic injustice?

Demand that Garland replace his inept, unprofessional, unconstitutional, “Trump holdover” BIA with real judges who are experts in immigration, asylum, human rights, and fully committed to due process and fundamental fairness! 

To quote my good friend and Round Table 🛡 colleague, Hon. “Sir Jeffrey” Chase:

At the IJ level, the ACIJs have to be charged with determining if the IJ actually doesn’t know the law, or if they are choosing not to follow it.  Of course, you need ACIJs who actually know immigration law, which isn’t always the case anymore.  If it’s the former, you schedule additional training; if it’s the latter, they may need to suspend or remove the IJ.  That should be a priority for the next Chief IJ.

But why isn’t this being caught at the BIA level?  They continue to act as a rubber stamp.  There have been a few cases just in the past couple of weeks where the errors were really major and apparent.
A BIA that would “rubber stamp” denials without question or meaningful analysis so that OIL could then argue “deference” to railroad refugees and other individuals entitled to relief out of the country is precisely what Barr and Sessions intended to create. In other words, a “parody of justice” that would carry out the White Nationalist restrictionist agenda without giving it any thought. And, it’s no coincidence that this unconstitutional agenda falls hardest on the backs of  asylum seekers and other migrants of color. It also serves to reinforce the vile concept that individuals of color in the U.S. are not equal under the law.
The real question here is why Garland hasn’t effectively changed the system by bringing in real judges who are experts in immigration and human rights and who would be fair to all coming before his Immigration Courts regardless of race or status? “Gradual change” is unacceptable when individuals (and their conscientious representatives) are being subjected to deadly quasi-judicial incompetence on a daily basis. Tell Garland you’ve had enough!  
EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

🇺🇸 Due Process Forever!

PWS

08-16-22

🏴‍☠️ DYSFUNCTIONAL COURTS: HIGH DENYING IJ IN HOUSTON REJECTS BIA REMAND, LECTURES HIGHER COURT JUDGES ON HOW TO DENY ASYLUM TO REFUGEE WOMAN — Parties Given No Input In Garland’s Zany, Topsy-Turvy, Out Of Control, Asylum Denial Machine! — Who’s On First In This Deadly ☠️ “Ongoing Clown Show” 🤡 That Degrades Human Rights & Mocks Judicial Competence & Best Practices? 

Woman Tortured
“Nexus? What nexus? These “just happen to be” women facing a little “random violence!” 
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Here are the redacted decisions:

BIA Remand Maria Delmy Andasol-Parada_20220531_0001_Redacted IJ Ceritification Maria Delmy Andasol-Parada_20220531_0001_Redacted

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

Not rocket science 🚀 here:

  1. With credible testimony and harm that rises to the level of persecution for a woman in El Salvador, who was the victim multiple rapes, on its face, this should have been an easy grant for a competent IJ.
      • Essentially, this judge argues that harm rising to the level of persecution — multiple rapes — inflicted on a woman in El Salvador, where femicide and misogyny run rampant, has nothing to do with her being a woman. Such a conclusion is unlikely — some experts would say facially absurd! 
      • Indeed, the IJ’s apparent view that multiple rapes had nothing to do with a gender-based protected ground of being a woman would be totally “off the wall” for any experienced asylum adjudicator who truly understood the well-documented nature of violence against women as a widespread form of persecution worldwide!
      • According to the UN Handbook for Determining Refugee Status, adjudicators should give credible applicants “the benefit of the doubt.” “It is therefore frequently necessary to give the applicant the benefit of the doubt.” (Par. 203). That’s not what this IJ did!
      • Also, in the remand order, the BIA specifically rejected the IJ’s finding that this gross harm to the respondent was “individualized” and “personalized” and therefore not a basis for an asylum claim — something not mentioned by the IJ in his “certification.” 
  1. Another, better qualified Immigration Judge in the 5th Circuit recently granted a similar case for a Honduran woman. https://immigrationcourtside.com/wp-content/uploads/2022/06/Immigration-Judge-Asylum-Decision-5-6-2022-Redacted.pdf.
      • Counsel for the applicant is well aware of this “better analysis” and could have argued it.  But, in his snarky haste to prejudge and deny needed protection, this Houston IJ didn’t even give the parties a chance to participate in his “return to sender” (“certification”) nonsense.
      • A better functioning expert BIA would have long ago provided precedential guidance granting cases like this — adopting and amplifying the rationale of the IJ in the Honduran case.
      • Additionally, the BIA remand instructed the IJ to inquire of the DHS as to whether this victim of multiple rapes with no apparent criminal record or other adverse factors was and “enforcement priority” under applicable DHS guidelines — something that the IJ contemptuously and improperly did not do! Indeed, he didn’t seek any input from the parties despite being instructed to do so.
  1. Unquestionably, being an El Salvadoran woman is a) immutable or fundamental to identity; b) highly particularized, and c) socially visible, as recognized by the Salvadoran government and everyone in El Salvador, thereby clearly qualifying as a “particular social group.”
  2. Like the rest of the Northern Triangle, femicide, and abuse of women because they are women is endemic in El Salvador. Five minutes of internet research by a competent judge, assisted by good lawyers, would have turn up mountains of compelling, actually irrefutable, evidence of  such uncontrolled abuse. Try the research yourself. See, e.g., https://doi.org/10.3389/fpsyg.2022.867945; https://immigrationcourtside.com/2021/06/05/🇺🇸🗽⚖%EF%B8%8Fgeorge-w-bush-institute-report-gender-violence-☠%EF%B8%8F⚰%EF%B8%8Fdrives-continuing-refugee-flow-to-u-s-dishonesty-o/ (this is from the George W. Bush Institute, no less).
  3. There is also plenty of reliable evidence that El Salvador, like the rest of the Northern and Triangle Governments, is basically a failed state — something publicly admitted by some Administration officials, including Special Envoy to the Northern Triangle Ricardo Zuniga. https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A (“democracy, the rule of law and the security situation continue to deteriorate”). The Salvadoran government is neither willing nor able to provide a reasonable level of protection to women like this applicant. Indeed, there is likely sufficient evidence for a better BIA to establish a “rebuttable presumption of failure of state protection” in El Salvador and the rest of the Northern Triangle.
  4. Temporary Appellate Immigration Judge Gabe Gonzalez, author of the remand, is one of the better BIA judges. But, his remand could have been even stronger. He could have reversed this IJ and granted asylum on this record. Why “beat around the bush” on grantable cases that are being mishandled by “chronically over-denying IJs” below? At this point, removal of this particular judge from the case would be more than justified. Cases like this certainly raise the legitimate question of why IJs who sit around inventing reasons to deny relief to those in need of protection are on the Immigration Bench in the first place. There are certainly better-qualified judicial choices — many of them located in Texas — who could bring legitimacy, quality, and efficiency to Garland’s dysfunctional courts!
  5. “Bogus lack of nexus” is one of the most overused grounds for improper denials of protection by EOIR judges at all levels. It’s part of the “any reason to deny” approach enabled by EOIR’s current “anti-asylum culture” — one that was overtly encouraged and promoted by the Trump DOJ.
      • Recently, a BIA panel led by Judge Ellen Liebowitz rebuked another high-denying IJ’s bogus nexus denial in a Houston, 5th Circuit case. See  https://immigrationcourtside.com/category/department-of-justice/executive-office-for-immigration-review-eoir/board-of-immigration-appeals-bia/judge-ellen-liebowitz/. So, what isn’t THAT case a precedent — which would end the anti-asylum nonsense and intentionally wrong analysis employed by this judge? “Houston, we’ve got a problem!” What is Garland doing to solve it?
      • Inexplicably selecting Houston as one of the “test locations” for the new asylum regulations is “built to fail.” Without expert, positive guidance from qualified IJs in Houston (and the BIA) on granting asylum — something that this “denial centered court” simply doesn’t possess — there is every reason to believe that asylum seekers will not receive professional treatment or correct decisions from either the Asylum Office or the Immigration Court in Houston. And, relying on the BIA or, worse yet the “over the top” 5th Circuit,” to guarantee fairness and justice for asylum seekers? That’s a sick joke under current conditions!

8) Poorly reasoned, legally incorrect asylum denials and frivolous actions like the IJ’s “certification” in this case are a major factor in generating a 1.8 million case EOIR backlog and enabling a lawless, non-expert, anti-immigrant “culture of denial” at EOIR. Many grantable asylum cases languish in the backlog, are subjected to “Aimless Docket Reshuffling,” and then are wrongfully denied by poorly performing judges at both levels of EOIR.

9) EOIR suffers from poor leadership, a poorly performing BIA that overall lacks the expertise and courage to grant the large number of deserving asylum cases currently languishing in the EOIR backlog, and to set proper legal standards that will guide Immigration Judges and Asylum Officers in efficiently granting deserving cases at the first level of the system.

10) Garland should remove or reassign the “under-performers” and “non-performers” at EOIR and replace them with qualified experts committed to best practices and “guaranteeing fairness and due process for all” (EOIR’s now long-forgotten and dishonored mission).

11) Lives and the future of democracy are at stake here! America simply can’t afford the “institutionalized  nonsense” still rampant at EOIR as illustrated by this case!

12) Also, EOIR’s performance in this cases is inconsistent with almost every sentence of the recent “LA Declaration.” Issuing statements of principle that are directly contradicted by your actual practices is a bad idea!

This has been a bad week for individual rights and particularly the rights and humanity of women in America. Garland can’t fix the out of control, “fringe-right,” Supremes’ majority. But, he can fix EOIR! And, that would be a long overdue and desperately needed first step toward fixing the entire broken and foundering Federal Court system. Start “at the retail level” with what you have the power to fix and work from there!

🇺🇸 Due Process Forever!

PWS

06-24-22

⚖️🗽👨🏻‍⚖️TEAMING UP FOR GENDER-BASED ASYLUM JUSTICE IN NEW ORLEANS — Judge Eric Marsteller, Professor Hiroko Kusuda (Loyola NO Law), ICE ACC Robert Weir Show How Courts Should Work — “Honduran Women” Is A PSG In 5th Cir.

Professor Hiroko Kusuda
Professor Hiroko Kusuda
Clinical Professor & Director of Immigration Law Section
Loyola U. Of New Orleans College of Law
PHOTO: Loyola New Orleans

Here’s Judge Marsteller’s decision as reported to Dan Kowalski by Professor Kusuda:

Hi Dan,

New Orleans IJ granted asylum after we filed a post-Jaco supplemental brief.  DHS did not appeal.

Hiroko Kusuda

Clinic Professor

Loyola University New Orleans College of Law

Stuart H. Smith Law Clinic & Center for Social Justice

Immigration Judge Asylum Decision 5-6-2022 – Redacted

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

Here’s a comment from Hon. “Sir Jeffrey” Chase of the Round Table:

You probably already know this, but Hiroko [Kusuda] is a real NDPA star.  She was awarded AILA’s Excellence in Teaching Award a few years ago, and received the NGO Attorney of the Year Award this year from the FBA’s Immigration Law Section.  She has tirelessly represented the respondent in Matter of Negusie for years.

Beautifully written and reasoned decision by Judge Marsteller. Highly effective presentation by Professor Kusuda and the Loyola NO Immigration Clinic. No appeal of correct decision from ACC Robert Weir. It all adds up to a proper, efficient application of the law to save a life!

In addition to his very cogent analysis of why “Honduran women” is immutable, particularized, and socially distinct, Judge Marsteller got the nexus, “unwilling or unable to protect,” and reasonably available internal relocation issues in Honduras correct. These are things that too many Immigration Judges get wrong on a frequent basis — life-threatening mistakes that the BIA seldom corrects and never provides “positive guidance” in a precedential cases! Why?

The process could work like this in every case! Why doesn’t it?

This case is is a great illustration of a well-functioning system that EOIR, DHS, and the private bar could “build upon” to restore order, integrity, and efficiency to the Immigration Courts. It’s a shame that Garland hasn’t installed the right dynamic, practical, expert, due-process-oriented “leadership team” at EOIR and the BIA to get the job done! 

Many congrats to Hiroko and all involved in this success story.

Here’s an obvious question: Why aren’t Hiroko and many other “practical scholars” like her appellate judges on the BIA, fashioning the positive practical precedents on asylum and other forms of relief and articulating and requiring “best practices” that will “move” cases through the Immigration Courts in an efficient and orderly manner — without stomping on anybody’s legal and human rights?

Why not have Judge Marsteller teach his colleagues at EOIR how to “get to yes” in the many similar cases now languishing and often being wrongly denied in Immigration Courts? 

Why was Judge Marsteller able to figure out the correct answer when it often eludes the BIA?

Why can’t EOIR under Garland “build on success” rather than “institutionalizing failure?”

🇺🇸 Due Process Forever!

PWS

06-10-22