SEN. DIANNE FEINSTEIN (D-CA) JOINS CALL FOR GARLAND TO QUICKLY REVERSE TRUMP-ERA RACIST, MISOGYNIST, INCORRECT PRECEDENTS AIMED AT PUNISHING WOMEN REFUGEES FROM THE NORTHERN TRIANGLE! 

 

Senator Dianne Feinstein
Senator Dianne Feinstein (D-CA)
Official Portrait

https://www.feinstein.senate.gov/public/index.cfm/press-releases?id=D36F6BAC-ADE5-4173-BE85-8CE83CD6FE09

Feinstein to Garland: Reverse Trump-Era Asylum Eligibility Rules

May 14 2021

Washington—Senator Dianne Feinstein (D-Calif.) called on Attorney General Merrick Garland to review decisions made by the Trump administration restricting asylum eligibility for victims of domestic and gang violence.

The Refugee Act of 1980 extended asylum protections to foreign nationals who fear to return to their home countries due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The Trump administration rejected established precedent by restricting asylum eligibility for victims of gang and domestic violence.

“As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” wrote Senator Feinstein.

“I ask that you … consider vacating … those decisions and bring our asylum system back into alignment with the law and the values informing it,” Feinstein added.

Full text of the letter is available here and below:

May 13, 2021

The Honorable Merrick B. Garland

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Dear Attorney General Garland:

I write regarding two decisions issued by Attorneys General Session and Barr during the Trump administration in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), as well as other opinions based on these decisions. Enclosed are copies of letters I sent the Attorneys General on these decisions, which in my opinion, ignored precedent by eliminating asylum eligibility for many victims of domestic and gang violence. I am sure you share my belief that all who Congress made eligible for asylum should receive the law’s protections.

As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution.

The Refugee Act of 1980 extends asylum to foreign nationals who are unwilling or unable to return their country of origin due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). The Trump Administration rejected established precedent when it concluded that victims of domestic or gang violence ignored by their home countries could not claim the protections of asylum.

Accordingly, I ask that you, as part of your review of “precedential decisions … governing the adjudication of asylum claims” directed by President Biden in Executive Order No. 14,010, consider vacating Matter of A-B-, Matter of L-E-A-, and subsequent opinions based on those decisions and bring our asylum system back into alignment with the law and the values informing it. This approach has been used before to provide timely relief in anticipation of formal rulemaking.

Thank you for your prompt attention to this matter.

Sincerely,

Dianne Feinstein

United States Senator

###

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

It’s a very modest, straightforward, well-justified, and long overdue “ask” by Senator Feinstein and others.

It’s simply shocking that Garland continues to dither and “swallow the whistle” on “Basic Day 1 Immigration/Human Rights Stuff” while abused refugee women and their children continue to suffer and die on his watch. Meanwhile, their long suffering pro bono and “low bono” attorneys tear their hair out at Garland’s lack of attention to the horrible human rights, due process disaster in his Immigration “Courts.”

Woman Tortured
“She struggled madly in the torturing Ray” — Despite outrage from progressives and women’s rights advocates, AG Garland has shown no concern for the suffering of women because of bad Trump-era precedents that he has allowed to remain in effect as well as his continuation of Trump’s lawless refusal to enforce asylum laws at border!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

n

🇺🇸🗽⚖️Due Process Forever!

PWS

05-19-21

☠️YET ANOTHER DEADLY,  ⚰️ RIDICULOUS 🤡 EOIR MELTDOWN 🤮 OUTED! — Conservative 5th Circuit Excoriates BIA & Immigration Judge For Litany Of Errors In 38-Page Smackdown — Another Wrongful Denial Of Asylum To Honduran Exhausts Patience Of Even Normally Pro-Gov. Circuit Court!

Star Chamber Justice
“Justice”
Star Chamber
Style
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.ca5.uscourts.gov/opinions/unpub/18/18-60251.0.pdf

Morales Lopez v. Garland, 5th Cir., 03-19-21, unpublished

PANEL: Southwick, Graves, and Engelhardt, Circuit Judges

OPINION BY: James E. Graves, Jr., Circuit Judge

KEY QUOTE:  

Morales Lopez argues that the IJ improperly determined that she did not make a sufficient showing of past persecution and a well-founded fear of future persecution. Regarding past persecution, Morales Lopez argues that the IJ erroneously (1) required each incident of harm to rise to the level of persecution, (2) failed to consider all relevant incidents of harm, (3) required a showing of physical harm, and (4) failed to consider significant liberty deprivations suffered by Morales Lopez and her children. Morales Lopez further argues that (5) the substantial evidence compels a finding of past

10

Case: 18-60251 Document: 00515788451 Page: 11 Date Filed: 03/19/2021

No. 18-60251

persecution and (6) the IJ erred by failing to consider Morales Lopez’s psychological harm.

Regarding a well-founded fear of future persecution, Morales Lopez argues that the IJ erroneously (1) applied a preponderance-of-the-evidence standard instead of a reasonable-possibility standard; (2) failed to evaluate Morales Lopez’s fear of future persecution using the four-part test set forth in In re Mogharrabi; (3) conflated the past-persecution and well-founded-fear- of-future persecution analyses, (4) required Morales Lopez to offer direct proof of her persecutors’ motives, and (5) mischaracterized Ungar’s testimony. Morales Lopez further argues that (6) the substantial evidence compels a finding of a well-founded fear of future persecution.

Although we neither agree with nor reach all of Morales Lopez’s arguments, we agree with her overarching point: the IJ and the BIA improperly determined that Morales Lopez did not make a sufficient showing of past persecution and a well-founded fear of future persecution. We address Morales Lopez’s arguments in turn.

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

Judge James E. Graves, Jr.
Hon. James E. Graves, Jr.
U.S. Circuit Judge
Fifth Circuit
PHOTO: Wikipedia

Too bad this is unpublished. Once again, a Circuit Court has to provide the detailed analysis required by due process after the supposedly “expert” BIA commits error after error!

When they get below the “caption line” in an opinion, things go south fast for EOIR judges. I’d attribute that to a deadly combination of poor judicial selection, defective training, a “culture of prejudgement and denial,” large-scale overuse and misuse of the woefully inadequate and outdated “contemporaneous oral decision” format (not used by any other “court” for decisions of this importance and complexity), “haste makes waste” gimmicks, absurd “quotas,” inane “performance ratings,” constant political interference with decision-making, disastrously incompetent unprofessional docket management, and maliciously incompetent “leadership” from the DOJ. It’s an ungodly and inexcusable mess.

Sadly, my grim description doesn’t begin to capture just how embarrassingly unjust, unfair, dysfunctional, and just plain terrible EOIR’s “killer clown show” 🦹🏿‍♂️🤡 is. Not to mention that it is clearly unconstitutional, and a “living  repudiation of due process” as currently constituted and operated. Put this pathetic imitation of a “court system”out of its misery before it causes any more destruction of human lives and irreparable damage to our justice system!

Judge Garland, where, oh where, are you in American justice’s hour of need? Stop this disgraceful mockery of justice, humanity, and common sense! Now!

In the meantime, as I had warned, Judge Garland’s previously sterling record as a jurist 👨🏻‍⚖️ is being tarnished daily by association with some of the worst jurisprudence out there, courtesy of America’s Star Chambers,🏴‍☠️ a/k/a “Clown Courts,” 🤡🦹🏿‍♂️ now wholly owned by HIM, and “operated” in HIS name!

🇺🇸⚖️🗽Due Process Forever! Clown Courts🤡🦹🏿‍♂️ & Star Chambers☠️🏴‍☠️⚰️, Never!

PWS

03-21-21

AS ANOTHER BIASED BIA PRECEDENT BITES THE DUST, THE QUESTIONS ARE: 1) WILL THE BIA DELIVER ITS CUSTOMARY “MIDDLE FINGER” TO THE CIRCUITS; 2) WILL THE CIRCUITS FINALLY HOLD THE BIA ACCOUNTABLE FOR CONTEMPTUOUS CONDUCT; & 3) WILL THE BIDEN ADMINISTRATION REPLACE THE DEADLY BIA “CLOWN SHOW” 🤡☠️ WITH REAL JUDGES?

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://cliniclegal.org/resources/asylum-and-refugee-law/practice-alert-ninth-circuit-vacates-matter-e-r-l

Here’s the CLINIC “practice advisory” on the vacating of Matter of E-R-A-L-, 27 I&N Dec. 767 (BIA 2020)

Practice Alert

On December 10, 2020, the Ninth Circuit issued an order vacating the decision of the Board of Immigration Appeals in Matter of E-R-A-L-, 27 I&N Dec. 767 (BIA 2020). Albizures-Lopez v. Barr, No. 20-70640, 2020 WL 7406164, 2020 U.S. App. LEXIS 38725 (9th Cir. Dec. 10, 2020). In E- R-A-L-, the asylum applicant was targeted by a drug cartel because his family owned a farm in Guatemala. The Board’s now-vacated published decision rejected his family and landowner-based particular social groups, as well as making errors relating to the nexus analysis for asylum and withholding of removal.

Practitioners should note that the Ninth Circuit specifically vacated E-R-A-L- itself, meaning that the Board’s decision has no effect anywhere in the United States. See Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”) Practitioners should argue to Immigration Judges that E-R-A-L- is no longer binding precedent, making it easier to prove the cognizability of landowner-based particular social groups. If an Immigration Judge already denied a landowner case, and the appeal is pending before the Board, practitioners should argue that the case should be remanded in light of E-R-A-L-ʼs vacatur.

Practitioners confronting issues with an adjudicator’s implementation of the Ninth Circuit’s decision are encouraged to contact counsel for E-R-A-L-, Bradley Jenkins (bjenkins@cliniclegal.org) and Shane Ellison (ellison@law.duke.edu).

Catholic Legal Immigration Network, Inc. | cliniclegal.org | Updated December 2020

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

Congrats to Brad, Shane, and the rest of the CLINIC team.

This is certainly the right approach. But, in the past, the BIA has routinely “blown off” claims that reversal and vacation by a “mere Circuit Court” affects the “precedential  value” of the decision outside that Circuit. https://illinoislawreview.org/wp-content/uploads/2020/07/Sheffy.pdf#:~:text=A%20vacated%20BIA%20precedential%20decision%20is%20thus%20only,to%20contra-%20dict%20long-held%20notions%20of%20fairness%2C%20consistency%2C

That “in your face Article IIIs” position by the BIA is remarkable. But even more remarkable has been the feckless Article IIIs’ failure to challenge this disrespect for their functions.

You don’t even have to be a lawyer to understand that a vacated and/or reversed decision is no decision at all. Since it no longer represents the correct resolution of an actual dispute, it pertains to no live “case.” It’s simply part of the historical record of that case, having no force and effect. Continuing to treat it as “precedent” is essentially issuing an illegal advisory opinion, untethered to any actual case or controversy.

Sure, I understand the concept of “Circuit splits,” better than most, having dealt with the legal and practical aspects of them for nearly half a century. But, no reversed precedent should be effective anywhere unless and until the BIA revisits the issue in another Circuit with a precedent fully considering the reasons why the “naysaying Circuit” found their original precedent wrong, whether that Circuit’s interpretation should be adopted nationwide, and, if not, cogently explaining why they have chosen to disregard the Circuit’s views. And, it should be the BIA’s actual, independent evaluation, not a result that they are explicitly or implicitly “told” to issue by OIL, the Solicitor General, the Attorney General, the Director, or any other DOJ official.

So, whether E-R-A-L- continues to have precedential effect outside the 9th Circuit probably ultimately depends on if and when the Biden Administration replaces this BIA with better judges and whether we finally get a better qualified Attorney General, committed to due process, human rights, and human decency, willing to let the “new BIA” function independently. 

On the merits, E-R-A-L- was a ham-handed attempt by the BIA to abrogate its seminal Acosta precedent which correctly recognized “land ownership” as a proper “fundamental characteristic” and therefore a recognizable ”particular social group.” As I often have observed, the BIA’s subsequent absurdist, ahistorical approach in E-R-A-L- would come as a surprise to millions of dead kulaks liquidated by Stalin’s purges and countless others subjected to persecution throughout history based on property ownership, one of the most clearly recognized “particular,” “socially visible,” and “fundamental” characteristics in human existence. 

One wouldn’t exactly have to be a “Rhodes Scholar” to recognize the ridiculous, overtly politicized, intentional misinterpretation of asylum law that springs from the pages of the BIA’s atrociously erroneous decision in E-R-A-L-.

But, it’s hardly surprising, given the disrespect for immigration and human rights expertise in judicial selection at all levels of EOIR and the resulting failure to produce anything close to a fair, representative judiciary that is capable of understanding asylum law in context and appreciating the impact of their decisions on the human lives and communities they most affect. There is also a conspicuous absence of deliberation or dissent among today’s politically accommodating, “go along to get along” BIA “judges.”

What’s the purpose of a supposed “deliberative body” that neither transparently deliberates nor gets the correct answers on basic legal questions; a body incapable of protecting the constitutional and statutory rights, not to mention the lives, of individuals seeking justice?

To some, the BIA might (wrongly) be considered “obscure.” But, there is nothing “obscure” about the real human beings whose existence is threatened or eradicated by the BIA’s malfeasance and dereliction of duty!

The EOIR Clown Show 🤡 must go!

Due Process Forever!

PWS

12-22-20

 

FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation? 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Me
Me

FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation?

By Paul Wickham Schmidt

Retired U.S. Immigration Judge

Courtside Exclusive

Nov. 12, 2020

I.  INTRODUCTION — ABROGATION OF ASYLUM LAWS IN THE FACE OF EXECUTIVE LAWLESSNESS & RACIAL BIAS IS A NATIONAL DISGRACE

In Matter of Kasinga, I applied the generous well-founded fear standard for asylum established by the Supreme Court in Cardoza-Fonseca to reach a favorable result for a female asylum applicant. It was based on a particular social group of women of the tribe who feared persecution in the form of female genital mutilation, or “FGM.” I sometimes think of this as the “high water mark” of asylum law at the BIA.

Since then, proper, generous application of asylum laws to serve their intended purpose of flexibly, fairly, and consistently extending protection to those facing persecution has been steadily declining. The Trump Administration essentially overruled Cardoza-Fonseca and abolished asylum law without legislative change.

Both Congress and the Court have failed to stand up to this egregious abuse of the law, constitutional due process, and simple human decency that presents a “clear and present danger” to our nation’s continued existence.

Indeed, the performance of the Court in the face of the Administration’s overt assault on asylum has been so woeful as to lead me to wonder whether any of the Justices, other than Justice Sonia Sotomayor, have actually read the Cardoza-Fonseca decision. Certainly, most of them have failed to consistently and courageously carry forth its spirit and to grapple with their legal and moral responsibility for letting a lawless Executive trample the constitutional and human rights, as well as the human dignity, of the most vulnerable among us.

How did we get to this utterly deplorable state of affairs and what can the Biden Administration do to save us? Will they act boldly and courageously or continue the tradition of ignoring abuses directed against asylum seekers and the deleterious effect it has on our society and the rule of law?

I guarantee that racial justice and harmony will continue to elude us as a nation unless and until we come to grips with the ongoing abuses in the Immigration Courts — “courts” that no longer function as such in any manner except the misleading name!

II.   BACKGROUND

To understand what has happened since Kasinga, here’s some background. In U.S. asylum law, there generally has been an “inverse relationship” between geography and success. The further your home country is from the U.S., the more generous the treatment is likely to be.

Thus, folks like Kasinga from Togo, or those from Tibet, Ethiopia, China, or Eritrea, with relatively difficult access to our borders, tend to do relatively well. On the other hand, those from Mexico, Haiti, Central America, and South America, who have easier access to our borders, tend to be treated more restrictively.

This reaction has been driven by a hypothesis with limited empirical support, but which has been accepted in some form or another by all Administrations, regardless of party, since the enactment of the Refugee Act of 1980. That is, the belief that human migration patterns are driven primarily by the policies and legal regimes in prosperous so-called “receiving countries” like the U.S.

Thus, generous and humane asylum policies will encourage unwanted flows of asylum seekers across international borders. And, of course, we all know that nothing threatens the national security of the world’s greatest nuclear superpower more than a caravan or flotilla of desperate, unarmed asylum seekers and their families trying to turn themselves in at the border or to the Border Patrol shortly after arrival.

Conversely, restrictive policies including rapid, unfair rejection, border turn-backs, mass detentions, criminal sanctions, family separation, denials of fair hearings, walls, border militarization, and hostile, often racially and religiously charged rhetoric, will cause asylum seekers to “stay put” thus deterring them and reducing the number of applications threatening our national security. In other words, encourage legitimate asylum seekers to “perish in place.” Often, these harsh policies are disingenuously characterized as being, at least partially, “for the benefit of asylum seekers” by discouraging them from undertaking dangerous journeys and paying human smugglers only to be summarily rejected upon arrival.

This “popular hypothesis” largely ignores the effect of conditions in refugee sending countries, including both geopolitical and environmental factors. For example, the current migration flow is affected by the practical difficulties of travel in the time of pandemic and by economic failures and cultural and political changes resulting from unabated climate change, not just by the legal restrictions that might be in place in the U.S. and other far-away countries.

It also factors out the “business narratives” of human smugglers designed to manipulate asylum seekers in ways that maximize profits under a variety of scenarios and to take maximum advantage of mindlessly predictable government “enforcement only” strategies.

Indeed, there is plenty of reason to believe that such policies serve largely to maximize smugglers’ profits, extort more money from desperate asylum seekers, but with little long-term effect on migration patterns. The short-term reduction in traffic, often hastily mischaracterized as “success” by the government, probably reflects in part “market adjustments” as smugglers raise their rates to cover the increased risks and revised planning caused by more of a particular kind of enforcement. That “prices some would-be migrants out of the market,” at least temporarily, and forces others to wait while they accumulate more money to pay smugglers.

It also likely increases the number of asylum seekers who die while attempting the journey. But, there is no real evidence that four decades of various “get tough” and “deterrence policies” — right up until the present — have had or will have a determinative long term effect on extralegal migration to the U.S. It may well, however, encourage more migrants to proceed to the interior of the country and take “do it yourself” refuge in the population, rather than turning themselves in at or near the border to a legal system that has been intentionally rigged against them.

Regardless of its empirically questionable basis, “deterrence theory” has become the primary driving force behind government asylum policies. Thus, the fear of large-scale, out of control “Southern border incursions” by asylum seekers has driven all U.S. Administrations to adopt relatively restrictive interpretations and applications of asylum law with respect to asylum seekers from Central America.

Starting with a so-called “Southern border crisis” in the summer of 2014, the Obama Administration took a number of steps intended to discourage Central American asylum seekers. These included: use of so-called “family detention;” denial of bond; accelerated processing of recently arrived children and adults with children; selecting Immigration Judges largely from the ranks of DHS prosecutors and other Government employees; keeping asylum experts off the BIA; taking outlandish court positions on detention and the right to counsel for unrepresented toddlers in Immigration Court; and dire public warnings as to the dangers of journeying to the U.S. and the likelihood of rejection upon arrival.

These efforts did little to stem the flow of asylum seekers from the Northern Triangle. However, they did result in a wave of “Aimless Docket Reshuffling” (“ADR”) at the Immigration Courts that accelerated the growth of backlogs and the deterioration of morale at EOIR. (Later, Sessions & Barr would “perfect the art of ADR” thereby astronomically increasing backlogs, even with many more judges on the bench, to something approaching 1.5 million known cases, with probably hundreds of thousands more buried in the “maliciously incompetently managed” EOIR (non)system).

Success for Central American asylum applicants thus remained problematic, with more than two of every three applications being rejected. Nevertheless, by 2016, largely through the heroic efforts of pro bono litigation groups, applicants from the so-called “Northern Triangle” – El Salvador, Honduras, and Guatemala – had achieved a respectable approval rate ranging from approximately 20% to 30%.

Many of these successful claims were based on “particular social groups” composed of battered women and/or children or family groups targeted by violent husbands or boyfriends, gangs, cartels, and other so-called “non-governmental actors” that the Northern Triangle governments clearly were “unwilling or unable to control.”

III.   CROSSHAIRS

Upon the ascension of the Trump Administration in 2017, refugee and asylum policies became driven not only by “deterrence theory,” but also by racially, religiously, and politically motivated “institutionalized xenophobia.” The initial target was Muslims who were “zapped” by Trump’s so-called “Muslim ban.” Although initially properly blocked as unconstitutional by lower Federal Courts, the Supreme Court eventually “greenlighted” a slightly watered-down version of the “Muslim ban.”

Next on the hit list were refugees and asylees of color. This put Central American asylum seekers, particularly women and children, directly in the crosshairs.

In something akin to “preliminary bombing,” then Attorney General Jeff Sessions launched a series of false and misleading narratives against asylum seekers and their lawyers directed at an audience consisting of Immigration Judges and BIA Members who worked at EOIR and thus were his subordinates.

Without evidence, Sessions characterized most asylum seekers as fraudulent or mala fide and blamed them as a primary cause for the population of 11 million or so undocumented individuals estimated to be residing in the U.S. He also accused “dirty immigration lawyers” of having “gamed” the asylum system, while charging “his” Immigration Judges with the responsibility of “assisting their partners” at DHS enforcement in stopping asylum fraud and discouraging asylum applications.

IV.    THE ATTACK

While not directly tampering with the “well-founded fear” standard for asylum, with Sessions leading the way, the Administration launched a three-pronged attack on asylum seekers.

First, using his power to review BIA precedents, Sessions reversed the prior precedent that had facilitated asylum grants for applicants who had suffered persecution in the form of domestic abuse. In doing so, he characterized them as “mere victims of crime” who should not be recognized as a “particular social group.” While not part of the holding, he also commented to Immigration Judges in his opinion that very few claimants should succeed in establishing asylum eligibility based on domestic violence.

He further imposed bogus “production quotas” on judges with an eye toward speeding up the “deportation railroad.” In other words, Immigration Judges who valued their jobs should start cranking out mass denials of such cases without wasting time on legal analysis or the actual facts.

Later, Sessions’s successor, Attorney General Bill Barr, overruled the BIA precedent recognizing “family” as a particular social group for asylum. He found that the vast majority of family units lacked the required “social distinction” to qualify.

For example, a few prominent families like the Rockefellers, Clintons, or Kardashians might be generally recognized by society. However, ordinary families like the Schmidts would be largely unknown beyond their own limited social circles. Therefore, we would lack the necessary “social distinction” within the larger society to be recognized as a particular social group.

Second, Sessions and Barr attacked the “nexus” requirement that persecution be “on account of” a particular social group or other protected ground. They found that most alleged acts of domestic violence or harm inflicted by abusive spouses, gangs and cartels were “mere criminal acts” or acts of “random violence” not motivated by the victim’s membership in any “particular social group” or any of the other so-called “protected grounds” for asylum. They signaled that Immigration Judges who found “no nexus” would find friendly BIA appellate judges anxious to uphold those findings and thereby retain their jobs.

Third, they launched an attack on the long-established “nongovernmental actor” doctrine. They found that normally, qualifying acts of persecution would have to be carried out by the government or its agents. For non-governmental actions to be attributed to that government, that government would basically have to be helpless to respond.

They found that the Northern Triangle governments officially opposed the criminal acts of gangs, cartels, and abusers and made at least some effort to control them. They deemed the fact that those governments are notoriously corrupt and ineffective in controlling violence to be largely beside the point. After all, they observed, no government including ours offers “perfect protection” to its citizens.

Any effort by the government to control the actor, no matter how predictably or intentionally ineffective or nominal, should be considered sufficient to show that the government was willing and able to protect against the harm. In other words, even the most minimal or nominal opposition should be considered “good enough for government work.”

V.   THE UGLY RESULTS

Remarkably, notwithstanding this concerted effort to “zero out” asylum grants, some individuals, even from the Northern Triangle, still succeed. They usually are assisted by experienced pro bono counsel from major human rights NGOs or large law firms — essentially the “New Due Process Army” in action. These are the folks who have saved what is left of American justice and democracy. Often, they must seek review in the independent, Article III Federal Courts to ultimately prevail.

Some Article IIIs are up to the job; many aren’t, lacking both the expertise and the philosophical inclination to actually enforce the constitutional and statutory rights of asylum seekers — “the other,” often people of color. After all, wrongfully deported to death means “out of sight, out of mind.”

However, the Administration’s efforts have had a major impact. Systemwide, the number of asylum cases decided by the Immigration Courts has approximately tripled since 2016 – from approximately 20,000 to over 60,000, multiplying backlogs as other, often older, “ready to try” cases are shuffled off to the end of the dockets, often with little or no notice to the parties.

At the same time, asylum grant rates for the Northern Triangle have fallen to their lowest rate in many years 10% to 15%. Taken together, that means many more asylum denials for Northern Triangle applicants, a major erosion of the generous “well-founded fear” standard for asylum, and a severe deterioration of due process protections in American law. Basically, it’s a collapse of our legal system and an affront to human dignity. The kinds of things you might expect in a “Banana Republic.”

VI.  WILL BIDEN FIX EOIR OR REPEAT THE MISTAKES OF THE OBAMA ADMINISTRATION?

The intentional destruction of U.S. asylum law and the weaponization of EOIR in support of the White Nationalist agenda have undermined the entire U.S. justice system. It actively encourages both dehumanization (“Dred Scottification”) and institutionalized racism all the way up to a Supreme Court which has improperly enabled large portions of the unlawful and unconstitutional anti-migrant agenda.

The Biden Administration can reverse the festering due process and human rights disaster at EOIR. Unlike improving and reforming the Article III Judiciary, it doesn’t need Mitch McConnell’s input to do so.

Biden can appoint an Attorney General who will recognize the importance of putting immigration/human rights/due process experts in charge of EOIR. He can replace the current BIA with real appellate judges whose qualifications reflect an unswerving commitment to due process, expert application of asylum laws in the generous manner once envisioned by the Supreme Court in Cardoza-Fonseca, implementing “best” practices, judicial efficiency, and judicial independence.

Biden can return human dignity to an improperly weaponized system designed to “Dred Scottify” the other. He can appoint better qualified Immigration Judges through a merit-based system that would encourage and give fair consideration to the many outstanding candidates who have devoted their professional lives to fighting for due process, fundamental fairness, and immigrants’ rights, courageously, throughout America’s darkest times!

That, in turn, will create the necessary conditions to institutionalize the EOIR reforms through the legislative creation of an independent, Article I Immigration Court that will be the “gemstone” of American justice rather than a national disgrace! One that will eventually fulfill the noble, now abandoned, “EOIR Vision” of “through teamwork and innovation being the world’s best tribunals, guaranteeing fairness and due process for all.”

The Obama Administration shortsightedly choose to “freeze out” the true experts in the private advocacy, NGO, academic, clinical teaching, and pro bono communities. The results have been beyond disastrous.

In addition to killing, maiming, and otherwise harming humans entitled to our legal protection, EOIR’s unseemly demise over the past three Administrations has undermined the credibility of every aspect of our justice system all the way to the Supreme Court as well as destroying our international leadership role as a shining example and beacon of hope for others.

The talent in the private sector is out there! They are ready, willing, and very able to turn EOIR from a disaster zone to a model of due process, innovation, best practices, fair, efficient, and practical judging, and creative judicial administration. One that other parts of the U.S. judicial system could emulate.

Will the Biden Administration heed the call, act boldly, and put the “right team” in place to save EOIR? Or will they continue past Democratic Administrations’ short-sighted undervaluation of the importance of providing constitutionally required due process, equal justice, and fundamental fairness to all persons in the U.S. including asylum applicants and other migrants.

I’ve read a number of papers and proposals on how to “fix” immigration and refugee policies. None of them appears to recognize the overriding importance of making EOIR reform “job one.”

For once, why can’t Democrats “think like Republicans?” When John Ashcroft and Kris Kobach and later Jeff Sessions and Stephen Miller set out to kneecap, politicize, and weaponize the U.S. justice system, what was their “starting point?” EOIR, of course!

The Obama Administration’s abject failure to effectively address and reverse the glaring mess at EOIR left by the “Ashcroft reforms” basically set the table for Sessions’s even more invidious plan to weaponize EOIR into a tool for xenophobia and White Nationalist nativism. The problems engendered by allowing the politicization and weaponization of EOIR have crippled the U.S. justice system far beyond immigration and asylum law.

Without a better EOIR, fully empowered to lead the way legally and insure and enforce compliance, all reforms, from DACA, to detention reform, to restoration of refugee and asylum systems will be less effective, more difficult, and less enduring than they should be. Equal justice for all and an end to institutionalized racism cannot be achieved without bold EOIR reform!

It would also take some of the pressure off the Article III Courts. Time and again they are called upon, with disturbingly varying degrees of both willingness and competence in the results, to correct the endless stream of basic legal errors, abuses of due process, and inane, obviously biased and counterproductive policies regularly flowing from EOIR and DOJ. Indeed, unnecessary litigation and frivolous, ethically questionable, often factually inaccurate or intentionally misleading positions advanced by the DOJ in immigration matters now clog virtually all levels of the Article III Federal Courts right up to the docket of the Supreme Court!

So far, what I haven’t seen is a recognition by anyone on the “Biden Team” that the experts in the private bar who have been the primary fighters in the trenches, almost singlehandedly responsible for preserving American justice and saving our democracy from the Trump onslaught, must be placed where they belong: in charge of the effort to rebuild EOIR and those who will be chosen to staff it!

Continue to ignore the New Due Process Army and their ability to right the listing American ship of state at peril! It’s long past time to unleash the “problem solvers” on government and give them the resources and support necessary to use practical scholarship, technology, best practices, and “Con Law/Human Rights 101” to solve the problems!

No “magic list,” stakeholders committees, or consensus-building groups can take the place of putting expert, empowered, practical problem solvers in charge of the machinery. We can’t win the game with the best, most talented, most knowledgeable, most courageous players forever sitting on the bench!

The future of our republic might well depend on whether the Biden-Harris Administration can get beyond the past and take the courageous, far-sighted actions necessary to let EOIR lead the way to a better future of all Americans! We can only hope that they finally see the light. Before it’s too late for all of us!

Due Process Forever! Complicity & Complacency, Never!

 

 

 

 

“TORTURE” UNDER U.N. DEFINITION! ☠️— “GOVERNMENT-SANCTIONED CHILD ABUSE!” — WHAT HAVE WE BECOME AS A PEOPLE & A NATION? — AMERICA HAS PUT NOTORIOUS CHILD ABUSERS AND SHAMELESS “PERPS” OF “CRIMES AGAINST HUMANITY” IN CHARGE — We Now Have A Chance To Throw Them Out & Start The Return To Human Decency As An Overriding National Value! 🗽

 

Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!

Eugene Robinson
Eugene Robinson
Opinion Columnist
Washington Post
Source: WashPost Website

Eugene Robinson @ WashPost:

What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?

This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.

We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.

These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.

Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.

What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.

[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]

The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.

Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.

Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.

Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.

. . . .

Read the rest of Eugene’s article here:

https://www.washingtonpost.com/opinions/do-we-tolerate-the-kidnapping-of-children-this-election-is-our-chance-to-answer/2020/10/22/0f60d17c-1496-11eb-ad6f-36c93e6e94fb

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

Elise Foley
Elise Foley
Deputy Enterprise Editor
HuffPost
Photo Source: HuffPost.com

Elise Foley @ HuffPost:

President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.

“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”

Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.

Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.

“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”

. . . .

Read the rest of Elise’s article here:

https://www.huffpost.com/entry/trump-debate-family-separation_n_5f924368c5b62333b2439d2b

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

Ruth Marcus
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.

Ruth Marcus @ WashPost:

545.

That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.

545.

Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.

545.

That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.

545.

That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.

Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.

Those truths could not have been clearer cut than during Thursday night’s debate.

Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”

First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”

No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.

Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”

Welker persisted: “But how will you reunite these kids with their families, Mr. President?”

Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”

This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.

Welker, for the third time: “Do you have a plan to reunite the kids with their families?”

At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”

. . . .

Read the rest of Ruth’s op-ed here:

https://www.washingtonpost.com/opinions/545-children-are-still-separated-from-their-families-what-if-one-of-them-were-yours/2020/10/23/63d3be04-154f-11eb-ba42-ec6a580836ed_story.html

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

Bess Levin
Bess Levin
Politics & Finance Writer
Vanity Fair


Bess Levin
@ Vanity Fair:

The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.

Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”

pastedGraphic.png

Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”

“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.

“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”

At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”

Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.

pastedGraphic_1.png

With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”

pastedGraphic_2.png

Read the rest of The Levin Report here:

https://mailchi.mp/c4319dce073e/levin-report-trumps-heart-bursting-with-sympathy-for-his-buddy-bob-kraft-2882762?e=adce5e3390

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Jacob Soboroff
Jacob Soboroff
NBC Correspondent
Jacob Soboroff at the ABC News Democratic Debate
National Constitution Center. Philadelphia, PA.
Creative Commons License

Here’s a video from NBC New’s  Jacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”

https://www.msnbc.com/msnbc/watch/soboroff-the-conditions-of-migrant-children-trump-described-as-well-taken-care-of-made-me-sick-94450757764

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

Julia Edwards Ainsley

And, here’s another video from NBC News’s always incisive and articulate Julia Edwards Ainsley:

https://www.cnbc.com/video/2020/10/21/lawyers-cant-find-parents-of-545-migrant-children-separated-by-the-trump-administration.html

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

There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!

PWS

10-25-20

😎👍⚖️🗽👩🏻‍⚖️👨‍⚖️🇺🇸YES! — WOW! IN A HUGE VICTORY FOR DUE PROCESS & FUNDAMENTAL FAIRNESS, PANEL LED BY JUDGE STEPHANIE THACKER WITH 2 TRUMP APPOINTEES UNANIMOUSLY BLOWS AWAY BIA ON NEXUS TO A NUCLEAR FAMILY PSG FROM EL SALVADOR! — Arlington Superstar 🌟 Litigator Aaron Caruso With Big Win For Cause Of Justice! — Hernandez-Cartagena v, Barr! — “Kardashian Rule” & Other BIA/Billy The Bigot Nonsense Smashed!

 

https://www.ca4.uscourts.gov/opinions/191823.P.pdf

HERNANDEZ-CARTAGENA v. BARR, 4th Cir., 10-15-20, published

PANEL: THACKER, RICHARDSON, and QUATTLEBUAM, Circuit Judges

OPINION BY: JUDGE STEPHANIE THACKER

KEY QUOTE:

Contrary to the BIA’s conclusion in this case, the record does not support the conclusion that Petitioner’s own conflict with the gang precipitated any of the events in question. Indeed, substantial evidence in the record compels the conclusion that at least one central reason Petitioner was targeted was her membership in the Hernandez-Cartagena family. The unrebutted evidence in the record demonstrates that the threats and violence against Petitioner, her child, and her siblings were designed to get her parents to pay up. Pursuant to Hernandez-Avalos, it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.
11

IV.
For the reasons set forth herein, the petition for review is granted, the decision of
the BIA is reversed, and we remand to the BIA for proceedings consistent with this opinion.

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

Why this is important: It delivers a totally deserved “double whammy” to two of the worst and most biased precedents issued during the Trump White Nationalist “kangaroo court era” at the BIA.

First, in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), (“L-E-A- 1”) the BIA recognized the “nuclear family” as a “particular social group.” Yet, to produce the necessary asylum denial sought by their “Trump handlers” at DOJ, the BIA erroneously found that the threatened harm had no “nexus” to the PSG.

To reach this improper and illogical result, the BIA disingenuously trashed the “normal” rules of causation. Those say that nexus is established if the harm would not have occurred “but for” membership in the protected group. Of course, there could be multiple “but fors” in a particular case, recognizing the “at least one central reason” statutory language for nexus.

That respondent was targeted for harm by gangs because his family owned a drug store that the gangs wanted to access to distribute illegal drugs. Had the respondent not been a member of his particular family, there is no reason to believe he would have have been targeted for any harm, or indeed have been of any interest to the gangs at all.

In other words, “but for” his membership in that particular family PSG, the threats would not have occurred. Essentially, a “no brainer” asylum grant that could have been quickly granted by a competent adjudicator. Any DHS appeal should have been a strong candidate for summary dismissal.

Instead of doing the obvious, the BIA invented new rules of causation. Contrary to the record, they found that family membership was essentially irrelevant to the threatened persecution. No, according to the BIA, the threats against the respondent were motivated solely the gang’s desire to sell illegal drugs through the family store, not a protected ground.

By searching for “any other motivation” and then basically substituting it to the exclusion of the clear family PSG motivation, the BIA bizarrely and erroneously concluded that the PSG was not “one central reason” for the persecution. This allowed the BIA to deny asylum to a respondent who fit squarely within the “refugee” definition.

Although the decision might have been cloaked in garbled legalese and irrational, result-oriented analysis, the overall message to Immigration Judges and BIA Appellate Judges was clear: faced with facts that demanded an asylum grant to a Central American refugee, the adjudicator should manufacture “any reason other than a protected ground” to deny protection. The BIA will have your back.

Let’s play out the BIA’s intentionally perverted analysis on a larger scale. The leaders of the Nazi movement stood to profit mightily from the eradication of the German Jewish community. Stolen artwork, confiscated wealth and property, and even the proceeds of the gold and silver obtained from collecting and melting down the dental fillings of gassed Jews found their way into Nazi bank accounts, many abroad. Thus, the BIA could view the Holocaust not as religious, nationality, or racial persecution, but rather part of an overall criminal scheme to enrich Nazi leaders by stealing from prosperous or vulnerable individuals. No persecution there!

Happily, in Hernandez-Cartagena, Judge Thacker and her colleagues blew through the type of bogus analysis set forth in L-E-A- 1. Although not specifically citing the BIA’s defective precedent, the court applied “normal rules of causation” rather than the BIA’s “any reason to deny” approach.

The petitioner was a “conduit” In the gang’s scheme to extort money from her parents. The court recognized that “it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.”

Good bye and good riddance L-E-A- 1. Hello, rational analysis and well-merited protection, although sadly only within Fourth Circuit, for now.

But, that’s not the end of the tale of woe from America’s most blatantly biased, unprofessional, deadly, and totally unconstitutional “21st Century Star Chambers.” Not satisfied with the BIA’s illegal denial of protection in L-E-A- 1, two years later, Attorney General “Billy the Bigot” Barr “certified” that case to himself. That became Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- 2”).

Star Chamber Justice
“Justice”
Star Chamber
Style

His purpose? To reverse the only correct part of L-E-A- 1: the BIA’s recognition of the “nuclear family” as a “PSG.” As we all know, the nuclear family is one of the oldest, most well-established, well-defined, and universally recognized social units in human history. Not surprisingly, then, it has been recognized as a “PSG” under the Refugee Act of 1980 in numerous judicial and BIA decisions as well as by a myriad of human rights and international law scholars.

Billy Barr Consigliere Artist: Par Begley Salt Lake Tribune Reproduced under license, Large
Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

No matter to Billy! In an exercise in disingenuous legal gobbledygook and counter-rationality, he tried to explain why it was wrong to recognize the obvious: that the nuclear family” is a “cognizable PSG” for asylum adjudication purposes.

Instead, Billy substituted what I call the “Kardashian rule.” Only those families who have some sort of widespread recognition in society as a whole should be considered to possess the “social distinction” (the characteristic formerly known as “social visibility”) to qualify as a “cognizable PSG.”

Kardashians
Billy Barr’s Vision Of A “Cognizable Particular
Social Group” By hotrock pictures – Vimeo: Kardashian Kollection at Sears (view archived source), CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=82871460
Creative Commons License

Again, without specifically citing L-E-A- 2, (perhaps the OIL was too embarrassed to argue it) Judge Thacker and her colleagues “blew away” its bigoted and irrational nonsense:

We have repeatedly held “a nuclear family provides a prototypical example of a particular social group” cognizable in our asylum framework. Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020) (internal quotation marks omitted).

Indeed, the Fourth Circuit has been a leader in recognizing the nuclear family as a PSG, going all the way back to a case where they reinstated some of my rulings as an Immigration Judge that had been wrongfully reversed by the BIA: Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). But, hey, who remembers stuff like that from nearly a decade ago where I was once again proved right and the BIA was wrong?

Yeah, I’ll have to admit that after eight years of regularly getting “stuffed” by my BIA colleagues at en banc, there were few things in my professional life more satisfying than having a Court of Appeals “stuff” the BIA on a case where I had dissented as a BIA Judge or been reversed as an Immigration Judge!

So Billy the Bigot’s attempt to impose the absurdist “Kardashian rule” (sorry Kim, Kourtney, and Khloe) in L-E-A- 2 bites the dust, at least in the Fourth Circuit. I hope it will serve as a “blueprint” to eradicate the “twin travesties” of L-E-A- 1 & 2 across the nation!

Exhilarating as this case is, it’s just one step in the right direction. The unconstitutional White Nativist bias and abuse being heaped upon refugees and other migrants by a “Star Chamber” beholden to the likes of “Billy the Bigot” Barr and his predecessor Jeff “Gonzo Apocalypto” Sessions won’t end until EOIR is abolished and replaced with a real court system that complies with 5th Amendment Due Process. If the Article III Courts don’t have the guts to get the job done, then its up to future better Congress to make it happen!

Lots of “gold stars” to hand out here!

Aaron Caruso, Esquire
Aaron Caruso, Esquire
Partner, Abod & Caruso
Wheaton, MD
Photo Source: Abod & Caruso Website

🌟First and foremost, Aaron Caruso, Esquire, of Abod & Caruso, Wheaton, MD. He appeared before me in Arlington. He’s the “total pro,” a “judge’s lawyer:” scholarly, unfailingly courteous, prompt, well-prepared, practical, wrote outstanding “to the issue” briefs that didn’t waste my time, took tough cases, and never gave up on his clients. In a “better world,” he’s definitely someone I could see on the Federal Bench at some level. A member of the NDPA, for sure!

Judge Stephanie D. Thacker
Honorable Stephanie D. Thacker
U.S. Circuit Judge
Fourth Circuit
Photo From Ballotpedia

🌟Judge Stephanie Thacker of the Fourth Circuit. I haven’t studied all of her judicial opinions. But, based on this opinion and her outstanding and totally correct dissent in Portillo-Flores v. Barr where she cogently castigated her fellow panel members for “going along to get along” with the BIA’s “at worst nonsensical and cursory at best” asylum denial, she appears one of a painfully small number of Article III Judges who both understand the mockery of justice going on in our Immigration “Courts” and have the guts to take a strong stand against it. https://immigrationcourtside.com/2020/09/04/%E2%80%8D%EF%B8%8F%EF%B8%8F%EF%B8%8Finjustice-watch-4th-cir-judge-stephanie-thacker-cogently-castigates-colleagues-for-misapplying/

Interestingly, this is the same panel as in Portillo-Flores. And, the BIA’s sloppy and incompetent analysis, including ignoring the evidence of record, presents largely the same issues. Only, this time Judge Thacker’s colleagues paid attention to what she was saying!

That says something about both her persuasiveness and her colleagues’ willingness to listen and take a better approach to judicial review. That’s also what’s known in the business as “making progress every day, one case, one life at a time.”

Unfortunately, Trump and the GOP right wing pols have turned Federal judicial selection into a race to control justice until at least 2060. That has forced the Dems to finally wake up and do likewise the next time they get the chance. The upshot: At 55, although still in the “prime years” of her career from a professional standpoint, Judge Thacker has probably “aged out” of the sweepstakes to be the “heart and soul” of the Supremes for the next four decades.

The good news: She should be around to continue saving lives, speaking truth to power, and serving as a great role model for younger, aspiring jurists and public officials of all races and genders for many years to come.

Compare Judge Thacker’s clear, concise, cogent analysis in this case with the wandering legal gobbledygook and pure nonsense put forth by the BIA and Barr in L-E-A- 1 & 2.

🌟Judge Julius N. Richardson and Judge A. Marvin Quattlebaum, Jr., of the Fourth Circuit also deserve stars. I really lambasted these two Trump appointees for their tone-deaf performance in Portillo-Flores. But, here they surprised me by joining fully in Judge Thacker’s analysis. Shows a capacity for teamwork, listening, adjusting views, and taking judicial review seriously, all really good things!

Additionally, it’s really important and significant when Trump appointees “do the right thing” and uphold due process, fundamental fairness, and recognize asylum seekers as “persons” entitled to equal justice under our Constitution. Given the large number of fairly young Trump appointees on the Federal Bench, it’s critical that as many of them as possible join their colleagues in resisting the White Nationalist assault on the rights and human dignity of people of color, particularly migrants and asylum seekers, being orchestrated by Trump, Miller, Barr, Wolf, and the rest of the regime’s gang of bigots.

Don’t know if this will be repeated in the future, but the votes of Judge Richardson and Judge Quattlebaum in this case are an encouraging sign for the American justice system. Will it be a trend or an aberration? Can’t tell, but stay tuned.

🌟Finally, and perhaps most importantly, hats off for Sandra Marleny Hernandez-Cartagena. In the face of a bogus “court” system controlled and operated by White Nationalist racist bigots for the purpose of wiping out asylum laws, demoralizing applicants through dishonest procedures and rules meant to discourage them from seeking protection, and to “send a message” that they aren’t wanted in our country, she persisted for herself, her family, and others similarly situated. Her victory in this case is a victory for American justice and for every one of us who believe in due process, fundamental fairness, and equal justice for all.

Thanks, Sandra, for inspiring us with your courage and unrelenting persistence in the face of evil and institutionalized, illegal, bias!

Due Process Forever!

PWS

10-16-20

LAWRENCE UNIVERSITY, GOVERNMENT 365: INTERNATIONAL LAW — A Virtual Conversation Between Professor Jason Brozek and Me!

Lawrence Government 365
Lawrence Government 365

https://youtu.be/CmC5fLys8oM

Whatever happened to the “promise of Kasinga? How have Sessions & Barr attacked the international refugee definition? Does international law have any meaning for the U.S. today? All this and more in 15 minutes!

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

See the “premier offering” from the “Courtside Video” broadcasting from our redesigned studio!

Thanks so much, Jason, for inviting me to do this! I hope your students find it useful! And, remember, I’m always available to answer questions at “Courtside.”

Due Process Forever!

PWS😎

05-06-20

RISKING LIVES TO KEEP THE DEPORTATION RAILWAY RUNNING — FOR UNACCOMPANIED KIDS! — “It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense.” — Julia Preston Reports For The Marshall Project

Julia Preston
Julia Preston
American Journalist
The Marshall Project
Wendy Young
Wendy Young
President, Kids In Need of Defense (“KIND”)

https://www.themarshallproject.org/2020/04/10/migrant-children-still-face-speedy-deportation-hearings-in-covid19-hotspots

Julia writes:

They are children who were caught crossing the southwest border without papers and sent to migrant shelters in New York when the coronavirus was silently spreading. Now the city is a pandemic epicenter in lockdown, but the Trump administration is pressing ahead with their deportation cases, forcing the children to fight in immigration court to stay.

In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.

This week an 8-year-old, a 5-year-old, and a teenage single mother with an infant were preparing for imminent court dates and deadlines in New York, lawyers representing them said. With children trapped indoors in shelters and foster-care homes, many young migrants who don’t have lawyers may not even be aware of ongoing court cases that could quickly end with orders for them to be deported.

Hearings for unaccompanied children are also proceeding in courts in other COVID-19 hotspots, including Los Angeles, San Francisco, Seattle, Chicago and Boston.

The Executive Office for Immigration Review, the Justice Department agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down courts nationwide. Although hearings for immigrants who are not detained have been suspended through May 1, cases of people in detention are going forward at the same accelerated pace as before the pandemic.

That includes many unaccompanied children. Since last year, Trump administration officials have instructed the courts to treat those children as detained if they are in shelters or foster care under the custody of the Office of Refugee Resettlement, or ORR, a federal agency. Immigration judges are under pressure to complete detained cases within 60 days—warp speed in immigration court—with no exception for children.

Across the country, about 3,100 unaccompanied children are currently in the custody of the refugee agency. Many have run from deadly violence and abuse at home and hope to find safety with family members in the United States. The demands for them to meet fast-moving court requirements are causing alarm among lawyers, caregivers and families.

“It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide lawyers for unaccompanied children. Unlike in criminal courts, in immigration court children have no right to a lawyer paid by the government if they cannot afford one.

On April 8, the American Immigration Lawyers Association, the immigration bar, and other legal groups asked a federal court for a temporary restraining order to force the Justice Department to suspend in-person hearings of detained immigrants during the pandemic.

Justice Department officials say they are holding hearings for immigrants in detention, including for children, so they can get their cases decided and perhaps be freed quickly.

. . . .

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

Read the rest of Julia’s report at the link. 

The idea, as DOJ claims, that this is being done to facilitate the “freeing” of kids is preposterous on its face.

First, there is nothing stopping them from arranging placements for children without the Immigration Court hearings being completed. It used to be done all the time.

Second, the DOJ has intentionally and unethically rewritten asylum laws through “precedents” aimed primarily at making it harder to qualify for asylum. This abuse of process particularly targets those fleeing persecution resulting from various types of systematic government and societal violence in Central America. The approval rates for these types of cases have fallen to minuscule levels under Trump.

Third, no child has any chance of succeeding in Immigration Court without a lawyer. Almost all lawyers who represent children in Immigration Court serve “pro bono” — or work for NGOs who can only provide minimal salaries. 

Yet, the Administration is making these lawyers risk their health and safety, while artificially accelerating the process, all of which actively and aggressively discourages representation. 

Added to that is the constant “Aimless Docket Reshuffling,” with Immigration Courts closing, reopening, and re-closing on a moment’s notice and dockets constantly being rearranged as judges, court support staff, interpreters, and DHS lawyers fall ill.

The Administration could work with groups like KIND and other NGOs to arrange placements, and schedule hearings in a manner that promotes health and safety for everyone while maximizing due process. But, the Administration refuses to do this. 

Instead, those seeking to inject sanity, common sense, best practices, and human decency into the process are forced to sue the Administration in Federal Court. This further dissipates and diverts already scarce legal resources that could have been used to actually represent children in Immigration Court and arrange safe placements for them.

Finally, as I have noted previously, the Administration has simply suspended the operation of the Constitution and the rule of law at the borders. This means that thousands, including unaccompanied children, are “orbited into the void” without any process whatsoever or any effort to ascertain their situations or best interests.

All of this gives lie to the Administration’s bogus claim that this is about looking out for the best interests of these kids. No, it’s about maximizing cruelty, destroying lives (considered an effective and acceptable “deterrent” in nativist circles), and carrying out a noxious racist White Nationalist restrictionist immigration agenda.

And, to date, Congress and the Federal Courts, both of which have the power to put an end to this disgraceful, unlawful, and unconstitutional conduct have been largely “MIA.”

Nevertheless, thanks to courageous and dedicated journalists like Julia and organizations like KIND, a public record is being made. While those responsible for implementing and enabling these abuses directed at the “most vulnerable of the vulnerable” among us are likely to escape legal accountability, they will eventually be tried and found wanting in the “court of history.”

Due Process Forever! Trump’s Child Abuse Never!

PWS

04-10-20

“KILLER ON THE ROAD” – EMBOLDENED BY THE COMPLICITY OF THE “ROBERTS’ COURT,” GOP ABDICATION OF LEGISLATIVE OVERSIGHT, & BREAKDOWN OF DEMOCRATIC INSTITUTIONS AND VALUES, REGIME APPARENTLY PLANNING EXTRALEGAL MOVE TO KILL MORE OF THE MOST VULNERABLE REFUGEES – Refugee Women, Children, LGBTQ Community, Victims Of Government-Enabled Gangs Said To Among Targets of Miller/Trump White Nationalist “American Death Squads!”

Dead Refugee Child
Dead Refugee Child Washes Ashore in Turkey — Stephen Miller Hopes To Kill More Refugees in The Americas
Stephen Miller & Wife
Mr. & Mrs. Stephen Miller Look Forward to Planning Together for More “Crimes Against Humanity” Targeting World’s Most Vulnerable Refugees

“KILLER ON THE ROAD” – EMBOLDENED BY THE COMPLICITY OF THE “ROBERTS’ COURT,” GOP ABDICATION OF LEGISLATIVE OVERSIGHT, & BREAKDOWN OF DEMOCRATIC INSTITUTIONS AND VALUES, REGIME APPARENTLY PLANNING EXTRALEGAL MOVE TO KILL MORE OF THE MOST VULNERABLE REFUGEES – Refugee Women, Children, LGBTQ Community, Victims Of Government-Enabled Gangs Said To Among Targets of Miller/Trump White Nationalist “American Death Squads!”

 

“There’s a killer on the road
His brain is squirmin’ like a toad
Take a long holiday
Let your children play
If ya give this man a ride
Sweet memory will die
Killer on the road, yeah”

 

— From “Riders on the Storm” by The Doors (1971)

 

By Paul Wickham Schmidt

Courtside Exclusive

Feb. 24, 2019

 

I have been getting “unverified hearsay” reports from Courtside readers and others across the country that an emboldened and now totally unrestrained Trump regime actively is planning an all-out extralegal, extrajudicial onslaught against established asylum laws. It’s likely to claim the lives of many of the most vulnerable and deserving asylum seekers in the United States.

 

Predictably, this atrocious attack on humanity and human dignity is the “brainchild” of newly married neo-fascist White Nationalist hate monger Stephen Miller. Although unconfirmed, these reports have come from diverse enough sources and sound so consistent with the regime’s nativist, xenophobic approach to asylum that I, for one, give them credence. It’s time to start sounding the alarm for the regime’s latest vile assault on the rule of law and our common humanity!

 

I have gleaned that there is a 200-page anti-asylum screed floating around the bowels of the regime’s immigration bureaucracy representing more or less the nativist version of the “final solution” for asylum seekers. The gist of this monumental effort boils down along these lines:

 

[W]ould ban the grant of asylum claims involving PSGs defined solely by criminal activity, terrorist activity, persecutory actions, presence in country with generally high crime rates, attempted recruitment by criminal, terrorist, persecutors, perception of wealth, interpersonal disputes which government were not aware of or involved in and do not extend countrywide; private criminal acts which government was not aware of and do not extend countrywide; status as returned from U.S. and gender. Note the inclusion of “gender” at the end.

 

Thus, in one “foul swoop” the regime would illegally: 1) strip women and the LGBTQ community of their decades-long, hard-won rights to protection under asylum laws; 2) eliminate the current rebuttable regulatory “presumption of countrywide future persecution” for those who have suffered past persecution; 3) reverse decades of well-established U.S. and international rulings that third party actions that the government was unwilling or unable to protect against constitute persecution; and 4) encourage adjudicators to ignore the legal requirement to consider “mixed motivation” in deciding asylum cases.

 

There is neither legal nor moral justification for this intentional distortion and rewriting of established human rights principles. Indeed, in my experience of more than two decades as a judge at both the appellate and trial levels, a substantial number, perhaps a majority, of the successful asylum and/or withholding of removal claims in Immigration Court involved non-governmental parties and/or gender-based “particular social groups.” They were some of the clearest, most deserving, and easiest to grant asylum cases coming before the Immigration Courts.

 

At the “pre-Trump” Arlington Immigration Court, many of these cases were so well-documented and clearly “grantable” that they were “pre-tried” by the parties and moved up on my docket by “joint motion” for “short hearing” grants. This, in turn, encouraged and rewarded multiparty cooperation and judicial efficiency. It was “due process with efficiency, in action.”

 

Consequently, in addition to its inherent lawlessness, cruelty, and intentional inhumanity, the regime’s proposed actions will stymie professional cooperation between parties and inhibit judicial efficiency. This is just one of many ways in which the regime has used a combination of wanton cruelty and “malicious incompetence” to artificially “jack up” the Immigration Court backlog to over 1.3 million pending and “waiting” cases, even with the hiring of hundreds of additional Immigration Judges.

 

In a functioning democracy, with an independent judiciary, staffed by judges with knowledge, integrity, and courage, you might expect a timely judicial intervention to block this impending legal travesty and humanitarian disaster as soon as it becomes effective. But, as Justice Sotomayor recently pointed out in a blistering dissent, Chief Justice Roberts and his four GOP colleagues appear to have “tilted” in favor of the regime.

 

They can’t roll over and bend the laws fast enough to “greenlight” each new immigrant-bashing gimmick instituted by the regime. Moreover, as I’m sure is intended, once these new anti-asylum regulations are railroaded into force, the USCIS Asylum Offices will deny “credible fear” in nearly all cases, thus preventing most asylum applicants from even getting a day in court to properly challenge the regulations. All this will happen while the life-tenured Article III Courts look the other way.

 

For Stephen Miller, the coming Armageddon for defenseless asylum seekers must represent the ultimate triumph of fascism over democracy, hate over reason, and racism over tolerance. Miller was recently quoted in a New Yorker article about how screwing asylum applicants, and presumably knowing that they and their families would suffer and die, be tortured, or be otherwise harmed by his unlawful acts, was, in effect, his “life’s dream.” “It’s just that this is all I care about. I don’t have a family. I don’t have anything else. This is my life,” said Miller after a meeting in which he had promoted a fraudulent “Safe Third Country Agreement” with El Salvador, a country he acknowledged was without a functioning asylum system.” https://slate.com/news-and-politics/2020/02/stephen-miller-immigration-this-is-my-life.html.

 

It appears that even Miller’s forlorn “love life” has taken an upturn. Although the Trump Administration has been a “coming out party” for racists, White Nationalists, and White Supremacists of all stripes, the “hater dater circuit” has remained somewhat “restricted.” Evidently, not everyone “gets off” on the chance to get “up close and personal” with “wannabe war criminals.”

 

Nevertheless, in the middle of all the suffering he has caused, Miller finally found somebody who apparently hates and despises humanity just as much as he does, in Vice Presidential Press Secretary Katie Waldman. They were recently married at the Trump Hotel in D.C. with the “Hater-in-Chief” himself attending the festivities. How can America “get any greater,” particularly if you have the good fortune not to be a refugee condemned to rape, torture, abuse, family separation, beatings, disfiguration, burning, cutting, extortion or other horribles by this cruel, scofflaw, and “maliciously incompetent” regime?

 

 

 

 

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

pastedGraphic.png

February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

  • In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

 

  • In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

 

  • In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

  • The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.
  • The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.
  • Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.
  • Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.
  • Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.
  • Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of  shallow “go along to get along” jurists!  Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!

yhttps://www.washingtonpost.com/world/the_americas/the-us-is-putting-asylum-seekers-on-planes-to-guatemala–often-without-telling-them-where-theyre-going/2020/01/13/0f89a93a-3576-11ea-a1ff-c48c1d59a4a1_story.html

Kevin Sieff
Kevin Sieff
Latin American Correspondent, Washington Post

Kevin Sieff reports from Guatemala for WashPost:

By

Kevin Sieff

Jan. 14, 2020 at 4:21 p.m. EST

GUATEMALA CITY — The chartered U.S. government flights land here every day or two, depositing Honduran and Salvadoran asylum seekers from the U.S. border. Many arrive with the same question: “Where are we?”

For the first time ever, the United States is shipping asylum seekers who arrive at its border to a “safe third country” to seek refuge there. The Trump administration hopes the program will serve as a model for others in the region.

But during its first weeks, asylum seekers and human rights advocates say, migrants have been put on planes without being told where they were headed, and left here without being given basic instruction about what to do next.

When the migrants land in Guatemala City, they receive little information about what it means to apply for asylum in one of the hemisphere’s poorest countries. Those who don’t immediately apply are told that they must leave the country in 72 hours. The form is labeled “Voluntary Return.”

 

“In the U.S., the agents told us our cases would be transferred, but they didn’t say where. Then they lined us up to get on the plane,” said a woman named Marta, 43, from Honduras. She sat in a migrant shelter here with her 17-year-old son, who nursed a gunshot wound in his left cheek — the work, both say, of a Honduran faction of the MS-13 gang.

“When we looked out the window, we were here,” she said. “We thought, ‘Where are we? What are we supposed to do now?’ ”

After the volcano, indigenous Guatemalans search for safer ground — in Guatemala, or the United States

Human rights organizations in Guatemala say they have recorded dozens of cases of asylum seekers who were misled by U.S. officials into boarding flights, and who were not informed of their asylum rights upon arrival. Of the 143 Hondurans and Salvadorans sent to Guatemala since the program began last month, only five have applied for asylum, according to the country’s migration agency.

 

“Safe third country” is one of the Trump administration’s most dramatic initiatives to curb migration — an effort to remake the U.S. asylum system. President Trump has called it “terrific for [Guatemala] and terrific for us.”

But an Asylum Cooperation Agreement is bringing migrants to a country that is unable to provide economic and physical security for its own citizens — many of whom are themselves trying to migrate. In fiscal 2019, Guatemala was the largest source of migrants detained at the U.S. border, at more than 264,000. The country has only a skeletal asylum program, with fewer than a dozen asylum officers.

Trump wants border-bound asylum seekers to find refuge in Guatemala instead. Guatemala isn’t ready.

As the deal was negotiated, it drew concerns from the United Nations and human rights organizations. But its implementation, advocates say, has been worse than they feared.

“It’s a total disaster,” said Thelma Shau, who has observed the arrival of asylum seekers at La Aurora International Airport in her role overseeing migration issues for Guatemala’s human rights ombudsman.

“They arrive here without being told that Guatemala is their destination,” she said. “They are asked, ‘Do you want refuge here or do you want to leave?’ And they have literally minutes to decide without knowing anything about what that means.”

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President Trump and first lady Melania Trump meet in the Oval Office last month with then-President Jimmy Morales of Guatemala. (Jabin Botsford/The Washington Post)

The Guatemalan government says that it explains asylum options and that migrants are simply choosing to leave voluntarily.

“Central American people are given comprehensive attention when they arrive in the country, and respect for their human rights is a priority,” said Alejandra Mena, a spokeswoman for Guatemala’s migration agency. “The information provided is complete for them to make a decision.”

In Guatemala, lenders that were supported by USAID and the World Bank are now funding illegal migration.

The Department of Homeland Security did not respond to requests for comment. The United States has signed similar “safe third country” agreements with El Salvador and Honduras, but they have not yet been implemented. In recent days, Trump administration officials have said they are considering sending Mexican asylum seekers to Guatemala to seek refuge.

Human rights groups in Guatemala that have observed the process say migrants here are not given key information about their options — such as what asylum in Guatemala entails and where they would stay while their claims are being processed. Many migrants are aware that Guatemala suffers from the same gang violence and extortion that forced them from their home countries.

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Migrants from Guatemala disembark from a raft in Ciudad Hidalgo, Mexico, in June. (Rebecca Blackwell/Associated Press)

Paula Arana observed the orientation as child protection liaison for the human rights ombudsman.

“It’s clear that the government is not providing enough information for asylum seekers to make a decision, especially in the three minutes they are given,” she said. “Instead, they are being pushed out of the country.”

The United States had suggested that it would begin implementing the agreement by sending single men to Guatemala. But less than a month after it began, families with young children are arriving on the charter flights. Last week, Arana said, a 2-year-old arrived with flulike symptoms.

On Thursday, a man named Jorge, 35, his wife and two daughters, ages 11 and 15, landed here. A day later, they were clustered together at the Casa del Migrante, a shelter in Guatemala City where government officials took them in a bus. They had been given the papers with 72 hours’ notice to leave Guatemala, and couldn’t figure out what to do.

The family had fled multiple threats from gangs in Honduras, which started with an interpersonal dispute between Jorge’s wife and one of the gang’s leaders. Jorge was certain that going back would mean certain death. Like Marta, Jorge did not want his last name to be published out of fear for his family’s safety.

“We’re thinking about our options. We know we can’t stay here. What would I do? Where would we stay?” he said. “Maybe we need to try to cross to the United States again.”

In western Guatemala, cultivating coffee was once a way out of poverty. As prices fall, growers are abandoning their farms for the United States.

The Office of the U.N. High Commissioner for Refugees is not participating in the program. But officials say they’re aware of problems with its implementation.

“UNHCR has a number of concerns regarding the Asylum Cooperation Agreement and its implementation,” said Sibylla Brodzinsky, UNHCR’s regional spokeswoman for Central America and Mexico. “We have expressed these concerns to the relevant U.S. and Guatemalan authorities.”

 

Human rights advocates who have interviewed the asylum seekers, known locally as “transferidos,” say many have decided that their best option is to migrate again to the United States. Smugglers often offer their customers three chances to make it across the border.

Migrants at the Casa del Migrante described spending a week in Immigration and Customs Enforcement custody in the United States, where they had intended to make their asylum claims. Many carried binders full of evidence they assumed would bolster their cases. On her phone, Marta saved avideo of her son being tortured by MS-13 gang members.

But in their brief conversations with U.S. immigration officials, they were told they would not be given a chance to apply for asylum in the United States.

“We had all this information to show them,” Marta said, leafing through photos of her son’s scars and Honduran court documents. “They said, ‘That’s not going to help you here.’ ”

This school aims to keep young Guatemalans from migrating. They don’t know it’s funded by the U.S. government.

In interviews with The Washington Post, some migrants said they were told vaguely that their cases were being “transferred.” Others were told they were going to be returned to their countries of origin.

“One agent told me, ‘You’re going back to Honduras,’ ” Marta said. But then they arrived in Guatemala City.

“When we looked out the window, we just assumed it was a stop,” her son said.

Marta thought Guatemala might be even more dangerous. They had no connection to the country and nowhere to stay beyond their first few days. When she left the migrant shelter to buy food Friday morning, she said, she stumbled upon a crime scene with a dead body a few blocks away.

During their nine-day detention at an ICE facility in Texas, she said, the family shared a cell with a Guatemalan family that was fleeing violence perpetrated by a different MS-13 group based here.

pastedGraphic_7.png

Agronomy students, some hooded, block a street outside a Guatemala City hotel before lawmakers voted on the deal that made Guatemala a “safe third country” for migrants seeking asylum in the United States. (Oliver De Ros/Associated Press)

“Why would they send us to a country where the same gangs are operating?” she asked.

 

In the absence of a thorough explanation of their asylum rights in Guatemala, El Refugio de la Niñez is offering a short tutorial to the asylum seekers. So far, 45 have attended.

“The Guatemalan government is completely absent in this whole process,” said Leonel Dubon, the director of the U.N.-funded center. “It sends a clear message. The government isn’t here to offer shelter, it’s here to push people out as quickly as possible.”

The Trump administration negotiated the “safe third country” agreement last year with lame-duck Guatemalan President Jimmy Morales.

As Guatemala pursues war criminals, a dark secret emerges: Some suspects are living quiet lives in the U.S.

Guatemala’s constitutional court initially blocked the deal. Then Trump threatened tariffs on the country and taxes on remittances sent home by Guatemalans living in the United States. It was eventually signed in July.

The new Guatemalan president, Alejandro Giammattei, was sworn in Tuesday. He has raised concerns about the agreement, saying he hadn’t been briefed on its details.

At the signing ceremony, Trump said it would “provide safety for legitimate asylum seekers, and stop asylum fraud and abuses [of the] system.”

U.S. asylum officers do not vet the cases of migrants before they are sent to Guatemala.

In her brief conversations with U.S. immigration agents, Marta tried to get them to look at her binder full of documents and photos.

“They weren’t interested,” she said. “They just kept saying that your case will be transferred to an institution that can handle it.”

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

Kevin writes about a tragically absurd situation that seems to have fallen “below the radar screen” of public outrage or even discourse. This is wrong! Most days I can’t believe that the county that I proudly served for more than 35 years is engaging in this type of abusive behavior that would be below the level of even some Third World dictatorships.

And, it isn’t just “occasional abuse” — it’s systemized, institutionalized abuse and dehumanization on a global and regular basis — all approved or de facto enabled by feckless and spineless Federal Appellate Courts, all the way up to the Supremes! These are folks who should know better and really have no other meaningful function in our “separation of powers” system other than to protect our individual rights. Authoritarian governments and dictators hardly need “courts” to enforce their will, even if some find it useful to “go through the motions” of creating and employing complicit “judges.” As one of my Round Table colleagues succinctly put it “there appears to be no bottom!”

Clearly, the “Safe Third Country” exception was never intended by Congress, nor does the statutory language permit it, to be used to “orbit” asylum applicants to some of the most dangerous refugee sending countries in the world with thoroughly corrupt governments and non-existent asylum systems. So, why does the Trump regime have confidence that it can and will get away with these atrocities? Because they believe, correctly so far, that the Article III Federal Courts, many of them now stacked with Trump’s hand-selected “toady judges,” are afraid to stand up to tyranny and protect the rights of desperate, mostly brown-skinned, asylum seekers.

Obviously, from an institutional standpoint, the Article III Courts are saying:

 “Who cares what happens to a bunch of brown-skinned foreigners. Let ‘em die, rot, or be tortured. Human rights, due process, and human dignity simply don’t matter when they don’t affect us personally, financially, or socially. That’s particularly true because the results of our abuses are taking place, thankfully, in foreign nations: out of sight, out of mind. Not our problem.”

Apparently, many Americans agree with this immoral and illegal approach. Otherwise, the “black robed, life tenured ones” would be pariahs in their communities, churches, and social interactions. They wouldn’t be offered those cushy teaching positions at law schools or a chance to expound before public audiences.

But, not speaking out against bad judges and not insisting on integrity and courage in the Article III courts could ultimately prove fatal for all of our individual rights. Judges who use their privileged positions to turn a blind eye to the oppression of others, particularly the most vulnerable humans among us, and the catastrophic failure of the rule of law and Due Process in  the U.S. immigration system can hardly be expected to stand up for the individual rights of any of us against Government oppression. 

After all, why should an exulted Federal Appellate Judge or a Supreme Court Justice care about what happens to you, unless your blood is about to spatter his or her pristine black robe? Many of those supportive of or complicit in Trump’s tyranny will personally experience the costs of a feckless Federal Judiciary when their “turn in the barrel” comes. And, the Trump regime’s list of those who’s “lives and rights don’t matter” is very, very long and continually expanding.

All I can say now is that some day, the full truth about what happens to those unlawfully and immorally turned away at our borders will “out.” Then, many Articles III judges will try to disingenuously protect their reputations by saying, similar to many judges of the Third Reich, “Gee, who knew,” or “I was powerless,” or “It was a political problem beyond our limited jurisdiction.”

My charge to the New Due Process Army: Don’t let the complicit judges get away with it in the “Court of History.” You see, know, and experience first-hand every day the results of Article III judicial complicity. Don’t ever forget what those judges have done and continue to do to human lives from their protected and “willfully clueless” ivory towers! Ultimately, you aren’t as powerless as the “complicit ones” think you are!

Due Process Forever; Feckless, Complicit, Immoral Federal Judges Never!

PWS

01-14-20 

  

PROFESSOR KAREN MUSALO @ LA TIMES: We Can Restore Legality & Humanity To U.S. Asylum Law — That’s Why The Refugee Protection Act Deserves Everyone’s Support — “The bill lays out a plan to allow women and girls fleeing gender-based violence the opportunity to obtain asylum, and bring our country back in line with its humanitarian commitments. It’s a vision that all members of Congress should be able to get behind, even at a time of bitter partisanship.”

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings LawMusalo

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=55eeae6e-b617-4ffd-b041-a54c15a3ada7&v=sdk

Professor Musalo writes in the LA Times:

Every day, courageous women and girls arrive at our southern border seeking refuge from unimaginable violence. Under our laws, they have the right to apply for asylum and have their cases heard. But rather than offering protection, the Trump administration is determined to send them back to the countries they have fought so hard to escape.

On Thursday, Sen. Patrick J. Leahy (D-Vt.) and Rep. Zoe Lofgren (D-Calif.) introduced the Refugee Protection Act. The bill lays out a plan to allow women and girls fleeing gender-based violence the opportunity to obtain asylum, and bring our country back in line with its humanitarian commitments. It’s a vision that all members of Congress should be able to get behind, even at a time of bitter partisanship.

It’s no secret that this administration is systematically dismantling our asylum law. Women and children have borne the brunt of the suffering — from the egregious policies of family separation and “Remain in Mexico,” to the quiet publication of decisions by the attorney general that have closed door after door to those seeking safety.

The Refugee Protection Act would rectify many of these inhumane actions, and includes language to reverse recent decisions that have made it nearly impossible for women fleeing domestic violence or gang brutality to qualify as refugees.

One of those decisions — known as Matter of A-B- — was handed down by then-Atty. Gen. Jeff Sessions in 2018. That decision has been used to limit the legal definition of “refugee” in an attempt to eliminate the possibility of asylum in the U.S. for victims of domestic violence, sex trafficking and other gender-based human rights violations. Since then, we have seen asylum approval rates plummet for women, children and families arriving at our southern border.

The Matter of A-B- case involves a domestic violence survivor from El Salvador who fears she will be killed if she is sent back to her country. My organization, the Center for Gender & Refugee Studies, has represented A.B. in her asylum case for nearly two years.

In El Salvador, A.B., a courageous and resilient woman, endured over 15 years of beatings, rapes, death threats and psychological abuse at the hands of her husband. She secured a divorce and even moved to another part of El Salvador, desperate to escape her abuser. But no matter where she went, he tracked her down. When she requested a restraining order, the police provided her one — and told her to hand-deliver it to him. Fearing that he would make good on his threat to kill her, she fled to the United States.

In 2016, A.B. was granted asylum by the highest administrative tribunal in the immigration system, the Justice Department’s Board of Immigration Appeals. But in a highly unusual procedural move, Sessions seized upon A.B.’s case, overturned the grant of asylum, and used it to declare that the United States should no longer extend protection to domestic violence survivors.

A.B. has appealed Sessions’ action, but until a final decision is reached, she remains terrified that she will be deported. Countless other women who have made the arduous journey to the United States also face a hostile immigration system and, post-Matter of A-B-, an even harder legal battle.

Congress has an opportunity to correct this. The new bill would clarify legal requirements for asylum and provide clear guidance for cases involving gender-based violence. It would ensure that asylum seekers like A.B. get a fair opportunity to argue her claim before a judge.

The United States has a long history of giving refuge to people who’ve come to our shores. This measure would be a step toward restoring that tradition.

Karen Musalo is a law professor and the founding director of the Center for Gender & Refugee Studies at UC Hastings College of the Law. She is also lead coauthor of “Refugee Law and Policy: An International and Comparative Approach (5th edition).”

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

Here’s  a link to an ImmigrationProf Blog summary and the text of the Refugee Protection Act, a recently introduced bill:

https://lawprofessors.typepad.com/immigration/2019/11/karen-musalo-restore-asylum-for-women-fleeing-abuse-and-death-.html

PWS

11-24-19

HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

Tanvi Misra
Tanvi Misra
Immigration Reporter
Roll Call

 

https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictive-immigration-judges?fbclid=IwAR2VfI3AKcttNoXlc_MX0sa-6X94bsOWF4btxb7tWDBz7Es4bvqB63oZA-0

 

Tanvi Misra reports for Roll Call:

 

DOJ changed hiring to promote restrictive immigration judges

New practice permanently placed judges on powerful appellate board, documents show

Posted Oct 29, 2019 2:51 PM

Tanvi Misra

@Tanvim

More non-Spanish speaking migrants are crossing the borderDHS advances plan to get DNA samples from immigrant detaineesWhite House plans to cut refugee admittance to all-time low

 

Error! Filename not specified.

James McHenry, director of the Justice Department’s Executive Office for Immigration Review, testifies before a Senate panel in 2018. Memos from McHenry detail changes in hiring practices for six restrictive judges placed permanently on the Board of Immigration Appeals. (Chip Somodevilla/Getty Images)

The Department of Justice has quietly changed hiring procedures to permanently place immigration judges repeatedly accused of bias to a powerful appellate board, adding to growing worries about the politicization of the immigration court system.

Documents obtained through Freedom of Information Act requests describe how an already opaque hiring procedure was tweaked for the six newest hires to the 21-member Board of Immigration Appeals. All six board members, added in August, were immigration judges with some of the highest asylum denial rates. Some also had the highest number of decisions in 2017 that the same appellate body sent back to them for reconsideration. All six members were immediately appointed to the board without a yearslong probationary period.

[More non-Spanish speaking migrants are crossing the border]

“They’re high-level deniers who’ve done some pretty outrageous things [in the courtroom] that would make you believe they’re anti-immigrant,” said Jeffrey Chase, a former immigration judge and past senior legal adviser at the board. “It’s a terrifying prospect … They have power over thousands of lives.”

Among the hiring documents are four recommendation memos to the Attorney General’s office from James McHenry, director of the Executive Office for Immigration Review, which oversees the nation’s immigration court system.

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The memos, dated July 18, recommend immigration judges William A. Cassidy, V. Stuart Couch, Earle B. Wilson, and Keith E. Hunsucker to positions on the appellate board. McHenry’s memos note new hiring procedures had been established on March 8, to vet “multiple candidates” expressing interest in the open board positions.

A footnote in the memos states that applicants who are immigration judges would be hired through a special procedure: Instead of going through the typical two-year probationary period, they would be appointed to the board on a permanent basis, immediately. This was because a position on the appellate board “requires the same or similar skills” as that of an immigration judge, according to the memo.

Appellate board members, traditionally hired from a variety of professional backgrounds, are tasked with reviewing judicial decisions appealed by the government or plaintiff. Their decisions, made as part of a three-member panel, can set binding precedents that adjudicators and immigration judges rely on for future cases related to asylum, stays of deportation, protections for unaccompanied minors and other areas.

McHenry, appointed in 2018 by then-Attorney General Jeff Sessions, concludes his recommendation memos by noting that the judge’s “current federal service was vetted and no negative information that would preclude his appointment” was reported. He does not mention any past or pending grievances, although public complaints have been filed against at least three of the judges.

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These documents, obtained through FOIA via Muckrock, a nonprofit, collaborative that pushes for government transparency, and shared with CQ Roll Call, reflect “the secrecy with which these rules are changing,” said Matthew Hoppock, a Kansas City-based immigration attorney. “It’s very hard to remove or discipline a judge that’s permanent than when it’s probationary, so this has long term implications.”

‘If I had known, I wouldn’t have left’: Migrant laments ‘Remain in Mexico’ policy

Volume 90%

 

The Department of Justice declined to answer a series of questions asked by CQ Roll Call regarding the new hiring practices, why exemptions were made in the case of these immigration judges and whether complaints against any of the judges were considered.

“Board members, like immigration judges, are selected through an open, competitive, and merit-based process involving an initial review by the Office of Personnel Management and subsequent, multiple levels of review by the Department of Justice,” a DOJ official wrote via email. “This process includes review by several career officials. The elevation of trial judges to appellate bodies is common in almost every judicial system, and EOIR is no different.”

Homestead: On the front lines of the migrant children debate

Volume 90%

 

Opaque hiring process

When the department posted the six board vacancies in March, the openings reflected the first time that board members would be allowed to serve from immigration courts throughout the country. Previously, the entire appellate board worked out of its suburban Virginia headquarters.

In addition, the job posts suggested that new hires would be acting in a dual capacity: They may be asked to adjudicate cases at the trial court level and then also review the court decisions appealed to the board. Previously, board members stuck to reviewing appeals cases, a process that could take more than a year.

Ultimately, all six hires were immigration judges, although past board candidates have come from government service, private sector, academia and nonprofits.

“This was stunning,” MaryBeth Keller, chief immigration judge until she stepped down this summer, said in a recent interview with The Asylumist, a blog about asylum issues. “I can’t imagine that the pool of applicants was such that only [immigration judges] would be hired, including two from the same city.”

Keller said immigration judges are “generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that.”

Paul Wickham Schmidt, a retired immigration judge who headed the board under President Bill Clinton, said the panel always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. But the Trump administration has “pushed the envelope the furthest,” he said.

“This administration has weaponized the process,” he told CQ Roll Call. “They have taken a system that has some notable weaknesses in it and exploited those weaknesses for their own ends.”

The reputation and track record of the newest immigration judges has also raised eyebrows.

According to an analysis of EOIR data by the Transactional Records Access Clearinghouse at Syracuse University, each of these newest six judges had an asylum denial rate over 80 percent, with Couch, Cassidy, and Wilson at 92, 96, and 98 percent, respectively. Nationally, the denial rate for asylum cases is around 57 percent. Previous to their work as immigration judges, all six had worked on behalf of government entities, including the Department of Homeland Security, Department of Justice and the military.

“It mirrors a lot of the concerns at the trial level,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association (AILA). She said several new hires at the trial level have been Immigration and Customs Enforcement attorneys.

“Every day across the country, people’s lives hang in the balance waiting for immigration judges to decide their fate,” she said. “Asylum grant rates for immigration court cases vary widely depending on the judge, suggesting that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.”

Immigration experts note that denial rates depend on a variety of factors, including the number and types of cases that appear on a judge’s docket. Perhaps a better measure of an immigration judge’s decision-making may be the rate that rulings get returned by the appeals board.

For 2017, the last full year for which data is available, Couch and Wilson had the third and fourth highest number of board-remanded cases — at 50 and 47 respectively, according to federal documents obtained by Bryan Johnson, a New York-based immigration lawyer. The total number of cases on their dockets that year were 176 and 416, respectively.

Some of the behavior by the newer judges also have earned them a reputation. In 2018, AILA obtained 11 complaints against Cassidy that alleged prejudice against immigrant respondents. In a public letter the Southern Poverty Law Center sent last year to McHenry, the group complained that Cassidy bullied migrants in his court. He also asked questions that “exceeded his judicial authority,” Center lawyers wrote.

Another letter, sent in 2017 by SPLC lawyers and an Emory University law professor whose students observed Cassidy’s court proceedings, noted the judge “analogized an immigrant to ‘a person coming to your home in a Halloween mask, waving a knife dripping with blood’ and asked the attorney if he would let that person in.”

SPLC also has documented issues with Wilson, noting how he “routinely leaned back in his chair, placed his head in his hands and closed his eyes” during one hearing. “He held this position for more than 20 minutes as a woman seeking asylum described the murders of her parents and siblings.”

Couch’s behavior and his cases have made news. According to Mother Jones, he once lost his temper with a 2-year-old Guatemalan child, threatening to unleash a dog on the boy if he didn’t stop making noise. But he is perhaps better known as the judge who denied asylum to “Ms. A.B.,” a Salvadoran domestic violence survivor, even after the appellate board asked him to reconsider. Sessions, the attorney general at the time, ultimately intervened and made the final precedent-setting ruling in the case.

Couch has a pattern of denying asylum to women who have fled domestic violence, “despite clear instructions to the contrary” from the appellate board, according to Johnson, the immigration lawyer who said Couch “has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum.”

Jeremy McKinney, a Charlotte-based immigration lawyer and second vice president at AILA, went to law school with Couch and called him “complex.” While he was reluctant to characterize the judge as “anti-immigrant,” he acknowledged “concerning” stories about the Couch’s court demeanor.

“In our conversations, he’s held the view that asylum is not the right vehicle for some individuals to immigrate to the U.S. — it’s one I disagree with,” McKinney said. “But I feel quite certain that that’s exactly why he was hired.”

Politicizing court system

Increasingly, political appointees are “micromanaging” the dockets of immigration judges, said Ashley Tabaddor, head of the union National Association of Immigration Judges. Appointees also are making moves that jeopardize their judicial independence, she said. Among them: requiring judges to meet a quota of 700 completed cases per year; referring cases even if they are still in the midst of adjudication to political leadership, including the Attorney General, for the final decision; and seeking to decertify the immigration judges’ union.

These are “symptoms of a bigger problem,” said Tabaddor. “If you have a court that’s situated in the law enforcement agency … that is the fundamental flaw that needs to be corrected.”

In March, the American Bar Association echoed calls by congressional Democrats to investigate DOJ hiring practices in a report that warned the department’s “current approach will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring.”

“Moreover, until the allegations of politically motivated hiring can be resolved, doubt will remain about the perceived and perhaps actual fairness of immigration proceedings,” the organization wrote. “The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

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One of the most disgusting developments, that the media sometimes misses, is that having skewed and biased the system specifically against Central American asylum seekers, particularly women and children, the Administration uses their “cooked” and “bogus” statistics to make a totally disingenuous case that the high denial rates show the system is being abused by asylum seekers and their lawyers. That, along with the “fiction of the asylum no show” been one of “Big Mac’s” most egregious and oft repeated lies! There certainly is systemic abuse taking place here — but it is by the Trump Administration, not asylum seekers and their courageous lawyers.

 

This system is a national disgrace operating under the auspices of a feckless Congress and complicit Article III courts whose life-tenured judges are failing in their collective duty to put an end to this blatantly unconstitutional system: one that  also violates statutory provisions intended to give migrants access to counsel, an opportunity to fully present and document their cases to an unbiased decision maker, and a fair opportunity to seek asylum regardless of status or manner of entry. Basically, judges at all levels who are complicit in this mockery of justice are “robed killers.”

 

Just a few years ago, asylum seekers were winning the majority of individual rulings on asylum in Immigration Court. Others were getting lesser forms of protection, so that more than 60 percent of asylum applicants who got final decisions in Immigration Court were receiving much-needed, life-saving protection. That’s exactly what one would expect given the Supreme Court’s pronouncements in 1987 about the generous standards applicable to asylum seekers in INS v. Cardoza-Fonseca.

 

Today, conditions have not improved materially in most “refugee sending countries.” Indeed, this Administration’s bogus designation of the Northern Triangle “failed states” as “Safe Third Countries” is absurd and shows their outright contempt for the system and their steadfast belief that the Federal Judiciary will “tank” on their responsibility to hold this Executive accountable.

 

As a result of this reprehensible conduct, the favorable trend in asylum adjudication has been sharply reversed. Now, approximately two-thirds of asylum cases are being denied, many based on specious “adverse credibility” findings, illegal “nexus” findings that intentionally violate the doctrine of “mixed motives”enshrined in the statute, absurdly unethical and illegal rewriting of asylum precedents by Sessions and Barr, intentional denial of the statutory right to counsel, and overt coercion through misuse of DHS detention authority to improperly “punish” and “deter” legal asylum seekers.

 

Right under the noses of complicit Article III Judges and Congress, the Trump Administration has “weaponized” the Immigration “Courts” and made them an intentionally hostile environment for asylum seekers and their, often pro bono or low bono, lawyers. How is this acceptable in 21st Century America?

 

That’s why it’s important for members of the “New Due Process Army” to remember my “5 Cs Formula” – Constantly Confront Complicit Courts 4 Change. Make these folks with “no skin the game” feel the pain and be morally accountable for those human lives they are destroying by inaction in the face of Executive illegality and tyranny from their “ivory tower perches.”  

We’re in a war for the survival of our democracy and the future of humanity.  There is only one “right side” in this battle. History will remember who stood tall and who went small when individual rights, particularly the rights to Due Process and fair treatment for the most vulnerable among us, were under attack by the lawless forces of White Nationalism and their enablers!

 

PWS

 

10-31-19

KIRSTJEN NIELSEN’S “REINVENTION” AS A “POWERFUL WOMAN” SHOWS THAT CRUELTY, INHUMANITY, & INTELLECTUAL DISHONESTY AREN’T “JUST FOR MEN ONLY” – Ambitious, Amoral “Girl” Shows How To Penetrate The “Good Ol’ Boys’ Network” @ DHS, Destroy Lots Of Innocent Lives, Get On TV!

Monica Hesse
Monica Hesse
Author &
Columnist
Washington Post

https://www.washingtonpost.com/lifestyle/style/whats-the-point-of-a-most-powerful-women-summit-if-kirstjen-nielsen-is-one-of-them/2019/10/23/e3c5d80a-f5a6-11e9-8cf0-4cc99f74d127_story.html

 

Monica Hesse writes in the Washington Post:

 

Oct. 23, 2019 at 4:58 p.m. EDT

Fortune magazine’s Most Powerful Women Summit is the kind of event where you can’t walk 20 steps without being handed the business card of another Powerful Woman, who you know paid $13,500 to be there, because that is the membership fee you would have paid, too, if you were an attendee at Fortune magazine’s Most Powerful Women Summit.Hillary Clinton was supposed to be a featured speaker at the conference in Washington this week, but then she backed out, partly because former homeland security chief Kirstjen Nielsen, enforcer of the Trump administration’s loathsome child separation policy, was also speaking. Incidentally, so was Rep. Tulsi Gabbard, the Hawaii Democrat whom Clinton had just called a “favorite of Russians” in the 2020 race, prompting Gabbard to accuse Clinton of being “the queen of warmongers, embodiment of corruption, and personification of the rot that has sickened the Democratic Party for so long.”

Anyway, I decided to go.

Held at the posh Mandarin Oriental hotel, Fortune’s conference is the kind of event where the seminars have titles like, “Co-Opetition: From Competition to Cooperation,” and where the hallways are lined with pressed-juice stands, and pop-up Dior counters providing mini-makeovers, and many, many advertisements for M.M. LaFleur, which is a clothing brand you never need know exists unless you reach a certain age and income level, at which point its logo will stalk you on Facebook. “M.M. LaFleur Live with Purpose. Dress with Ease.”

Wandering around on Monday and Tuesday (using a press pass, not my life savings), I caught sessions featuring congresswomen Elise Stefanik (R-N.Y.) and Elissa Slotkin (D-Mich.), Old Navy CEO Sonia Syngal and feminist icon Anita Hill. The COO of Rothy’s shoes was there, talking about how to build a viral brand, and so were dozen of audience members wearing Rothy’s shoes — evidence that the COO knows of what she speaks — and I am not going to lie, I was wearing Rothy’s, too.

The summit is one of those why-the-hell-not events, is what I’m saying. As in, Icertainly wouldn’t pay for it, but if you want to, go ahead. It’s no weirder than many manly conferences with booths showcasing the latest golf club technology. It’s Goop, but with its feet rooted more on the ground.

Except then, abruptly, it wasn’t. Because Anita Hill finished her Q&A, and the audience members ate our fancy “Networking Lunch,” and then suddenly it was Kirstjen Nielsen on the brightly lit ballroom stage, determinedly dodging every question posed to her by “PBS NewsHour’s” Amna Nawaz.

“I don’t regret enforcing the law because I took an oath to do that,” she said, after Nawaz repeatedly pressed her on whether she regretted signing the memo that greenlighted removing children from their parents at the Mexican border.

Nielsen insisted that she “spoke truth to power from the very beginning” of her tenure, and resigned when it became clear that “saying no” wasn’t enough. But then when Nawaz pointed out that Nielsen had just accepted another position with the administration, on the National Infrastructure Advisory Council, Nielsen defended the move: “Are you telling every CEO in here that they should never advise the government?” she asked incredulously.

Nielsen’s interview was over within 15 minutes, and then an event moderator appeared onstage and solemnly addressed the audience: “I know that was intense, and I just want to acknowledge that.”

And then I left the auditorium to get a mango-citrus juice and a perfume spritz and think about Powerful Women.

There’s no doubt that Nielsen is powerful; even before joining Homeland Security, she’d been one of the highest-ranking women in the White House. There’s no doubt that she’s a woman; in public appearances she plays up a traditionally womanly appearance with makeup and high heels.

Those were the basic qualifications for an invitation — but should they have been the only ones? When we talk about “Powerful Women,” should we applaud a woman who used her considerable power to make life difficult for the most powerless among us?

Fortune had titled Nielsen’s session “Hard Questions,” and the questions were appropriately pointed: Nobody tossed her softballs about how she balances work and home life, or how she shoehorns in “me” time. Nobody could have grilled Nielsen harder than Nawaz did, or tried to.

But her presence was so incongruous to the rest of the event — an innocuous, if privileged brand of go-get-’em corporate feminism — that it called into question why we were in that hotel at all.

What, in 2019, is the purpose and organizing principle of an event like the Most Powerful Women Summit? Is it like the Hall of Presidents at Disney World — a non-editorializing showcase of every boldfaced woman Fortune could rustle up to prove that many women are powerful?

Are we saying that Powerful Women are just like powerful men — some good and some bad? Which is true, of course, but then why do we need a separate event for them?

Are we just saying that women like green juice and Rothy’s?

Kirstjen Nielsen deserved to be questioned, hard, for her role in an immensely controversial administration policy. And maybe she accepted this particular engagement, her first since leaving the White House, because she thought she could expect a welcoming audience. One who would embrace her as one of their own because being a lady is rough, am I right? Toward the end of her interview, Nielsen wanly said she thought she was going to be asked more about cybersecurity.

But still, there was something off about it. Here she was, making her reputation-washing debut in a ballroom event celebrating aspirational women, smiling grittily as she informed us that, no, we’d all misremembered the whole past three years.

And most of us had paid $13,500 to be there.

 

Monica Hesse is a columnist writing about gender and its impact on society. For more visit wapo.st/hesse.

 

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Perhaps cruelty, nastiness, dishonesty, illegality, and inhumanity know no gender bounds. Certainly, Nielsen proved to be every bit as bad and every bit the sycophant as her male counterparts, Kelly & “Big Mac with Lies.” The relatives of the dead and those who have suffered unnecessarily and continue to suffer because of her lack of integrity are out there to reflect on the true nature and consequences of her “power” and “legacy.”

One of Nielsen’s most notable “achievements,” in addition to child separation and “Let ‘Em Die In Mexico,” was assisting Sessions & Barr in stripping battered, abused, and tortured women of their ability to gain protection under our asylum laws. Indeed, Nielsen went one better: she was a key player in Trump’s scheme to make women, children, and everybody else fleeing the Northern Triangle of Central America ineligible to apply for asylum at all, thus reversing decades of U.S. commitment to human rights and fundamental fairness. Wow, that’s like “Superwoman” stuff!

Monica Hesse is a well-known author and talented storyteller in addition to being a great journalist. I hope that one of her future projects will be to tell the stories of those whose lives were turned into living hell just because they had the audacity to seek protection under our laws in an attempt to save or better their lives and those of their families. Survival, asserting rights, evincing humanity, expecting kindness, fairness, and compassion: what greater “crimes” could there be in Trump’s America?

Sure, Nielsen might not have quite gotten down to the moral depravity of neo-Nazis like Miller and “Cooch Cooch,” the “custom designers” of Trump’s cowardly attacks on migrants, refugees, and human dignity. That’s a low bar to get under. But, that makes her neither a good person nor an appropriate role model for women (or men) seeking to possess power and engage in true leadership.

It’s  incredible to me that with all the brave, courageous, talented, and powerful women involved in leadership positions in the field of immigration and human rights – legislators, journalists, jurists, lawyers, artists, professors, ministers, social workers, NGO executives and managers, teachers, medical professionals, etc., — Nielsen was the best “role model” they could find!

Next year, the folks over at Fortune Maggie should give me a ring. I could give them the names of dozens of brilliant, talented, committed women who are “leading by example” – putting themselves and their values “on the line” every day to save lives and tend to the most vulnerable among us. And, of course, in doing so they actually are saving all of us. Because, to paraphrase MLK, Jr., harm to the most vulnerable among is harm to all of us.

I also have lots of suggestions as to where Fortune could donate the proceeds of the “Most Powerful Women Summit” to actually promote the responsible use of power for women and men: to actually make the world a better place, not just to “jack up” resumes or collect impressive, but largely meaningless, titles and accolades.

DUE PROCESS FOREVER, CORRUPT FORMER PUBLIC OFFICIALS NEVER!

 

PWS

10-24-19

COURTS OF INJUSTICE: How Systemic Bias, Bad Precedents, Gross Mismanagement, & Poor Decision-Making Threaten Lives In Immigration Court — What Should Be “Slam Dunk” Grants Of Protection Are Literally “Litigated To Death” Adding To Backlogs While Mocking Justice! — Featuring Quotes From “Roundtable” Leader Hon. Jeffrey Chase!

Beth Fertig
Beth Fertig
Senior Reporter
Immigration, Courts, Legal
WNYC & The Gothamist
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

https://gothamist.com/news/they-fled-gang-violence-and-domestic-abuse-nyc-immigration-judge-denied-them-asylum

Beth Fertig reports for WNYC:

They Fled Gang Violence And Domestic Abuse. An NYC Immigration Judge Denied Them Asylum

BY BETH FERTIG, WNYC

SEPT. 26, 2019 5:00 A.M.

Seventeen year-old Josue and his mom, Esperanza, were visibly drained. They had just spent more than four hours at their asylum trial inside an immigration court at 26 Federal Plaza in Lower Manhattan, answering questions from their attorney and a government lawyer. We are withholding their full names to protect their identities because they’re afraid.

“It was exhausting,” said Josue, whose angular haircut was neatly combed for the occasion. In Spanish, he told us the judge seemed nice but, “you feel bad if you don’t know if you are going to be allowed to stay or if you have to go.”

The teen and his mother crossed the U.S. border in California in the summer of 2018. At the time, a rising number of families were entering the country, and the Trump administration wanted to send a message to them by swiftly deporting those who don’t qualify for asylum. But immigration judges are so busy, they can take up to four years to rule on a case. In November, judges in New York and nine other cities were ordered to fast track family cases and complete them within a year.

This is how Esperanza and Josue wound up going to trial just 10 months after they arrived in the U.S. and moved to Brooklyn. They were lucky to find attorneys with Central American Legal Assistance, a nonprofit in Williamsburg that’s been representing people fleeing the troubled region since 1985.

Listen to reporter Beth Fertig’s WNYC story on Josue and Esperanza’s cases.

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Winning asylum was never easy. But in 2018, former Attorney General Jeff Sessions made it tougher for people like Josue and Esperanza when he issued his own ruling on an immigration case involving a woman from El Salvador who was a victim of domestic violence. He wrote: “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Immigration judges were bound to give heavy weight to that ruling. Their courts are run by the Department of Justice, whose boss is the Attorney General. And the AG’s boss, President Trump, frequently asserts that too many migrants lie about being threatened by gangs when they’re just coming for jobs. “It’s a big fat con job, folks,” he said at a Michigan rally this year.

Esperanza and Josue went to court soon after Sessions’ decision. She was fighting for asylum as a victim of domestic abuse; Josue claimed a gang threatened his life. Both would eventually lose their cases.

Josue’s case

Esperanza and Josue are typical of the Central American families seeking asylum these days, who say they’re escaping vicious drug gangs, violence and grinding poverty. The two of them came from a town outside San Pedro Sula, one of the most dangerous cities in the world.

During their trial, Josue testified under oath about how gang members repeatedly approached him outside his high school, asking him to sell drugs to the other students. He tried to ignore them, and gave different excuses for resisting, until one day when they spotted him playing soccer and became more aggressive. That’s when he said the gang leader put a gun in his face.

“He told me that if I didn’t accept what he wanted he was going to kill my whole family, my mother and sister,” he said, through a Spanish interpreter.

“I was in shock,” he said. “I had no other choice to accept and said yes.”

He told his mother and they left Honduras the next day. When Josue’s lawyer, Katherine Madison, asked if he ever reported the threat to the police he said no. “That was practically a suicide,” he said, explaining that the police are tied to the gang, because it has so much power.

Josue said his older sister later moved to Mexico because she was so afraid of the gang.

Winning asylum is a two-step process. You have to prove that you were persecuted, and that this persecution was on account of your race, religion, nationality, social group or political opinion. Madison, Josue’s attorney, argued that in Honduras, defying gangs is a risky political statement.

“They function in many ways as the de facto government of the areas where people like Josue lived,” she told WNYC/Gothamist, summing up the arguments she submitted to the judge. “They make rules. They charge basically taxes, they say who can live there and who can’t.”

And they’re known to kill people who don’t obey.

In her ruling, issued in August, Immigration Judge Oshea Spencer found Josue did experience persecution. But she denied his application for asylum. She said much of what he described “were threats and harm that exist as part of the larger criminal enterprise of the gangs in Honduras and not on the basis of any actual or perceived opposition to the gangs.”

Esperanza’s case

Esperanza’s attorney argued that her life was at risk because the gang member threatened Josue’s family. But Spencer didn’t find that specific enough. She wrote that the gang members “were motivated by their efforts to expand their drug trade, not the family relationship.” Among other cases, she referred to a recent decision by the current Attorney General, William Barr, that makes it harder for the relatives of someone who’s been threatened to win asylum.

Esperanza also lost on a separate claim that she deserved asylum because she was repeatedly beaten by Josue’s father. In court, she testified about years of abuse culminating in an incident in which he chased her with a machete. She said she couldn’t get the police to issue a restraining order, and said he kept threatening her after she moved to another town to stay with relatives.

Madison argued that women like Esperanza belong to a persecuted social group: they can’t get help from the authorities in Honduras because they’re viewed as a man’s property. The country is one of the deadliest places to be a woman; police are known to ignore complaints; and it’s extremely hard for women to get justice.

But Spencer ruled that there is no persecuted social group made up of “Honduran women who are viewed as property” for being in a domestic relationship.

Echoing the Sessions’ ruling, the judge said these categories “all lack sufficient particularity,” and called them “amorphous” because they could be made up of a “potentially large and diffuse segment of society.”

She also cited evidence submitted by the government that showed conditions in Honduras are improving for women. This evidence came from a 2018 State Department report on human rights in Honduras. Immigration advocates claim it’s been watered down from the much harsher conditions described in the last report from 2016. It’s also much shorter in length.

Jeffrey Chase, an immigration lawyer and former New York immigration judge, said it’s not surprising that Esperanza and Josue would each lose asylum. Judge Spencer only started last fall and is on probation for her first two years in the job.

“This was decided by a brand new judge who didn’t have any immigration experience prior to becoming an immigration judge,” he said, referring to the fact that Spencer was previously an attorney with the Public Utility Commission of Texas. He said she went through training which, “These days, includes being told that we don’t consider these to be really good cases.”

Sitting judges don’t talk to the media but Chase noted that they must consider the facts of each individual case, meaning the former Attorney General’s ruling doesn’t apply to all cases. He noted that some women who were victims of abuse are still winning asylum. He pointed to a case involving a Guatemalan woman who was raped by her boss. A Texas immigration judge found she did fit into a particular social group as a woman who defied gender norms, by taking a job normally held by a man.

During Josue and Esperanza’s trial, there was a lot of back and forth over their individual claims. A trial attorney from Immigration and Customs Enforcement questioned why Esperanza didn’t contact the police again after moving to another town, where she said her former partner continued to threaten her. Esperanza said it was because her brother chased him away and the police “don’t pay attention to you.”

The ICE attorney also asked Josue if his father was physically violent with anyone besides Esperanza. Josue said he did fight with other men. San Diego immigration lawyer Anna Hysell, who was previously an ICE trial attorney, said that could have hurt Esperanza’s case.

“The government was able to make the arguments that he didn’t target her because of being a woman that was in his relationship,” she explained. “He just was probably a terrible person and targeted many people.”

Hysell added that this was just her analysis and she wasn’t agreeing with the decision.

Attorney Anne Pilsbury said she believes Esperanza would have won her case, prior to the asylum ruling by Sessions, because she suffered years of abuse. But she said Josue would have had a more difficult time because gang cases were always tough. And like a lot of migrants, Josue had no evidence — he was too afraid to go to the cops. Pilsbury said immigration judges are even more skeptical now of gang cases.

“They’re getting so that they won’t even think about them,” she said. “They aren’t wrestling with the facts. They’re hearing gang violence and that’s it.”

She said Judge Spencer does sometimes grant asylum, and isn’t as harsh as other new judges. New York City’s immigration court used to be one of the most favorable places for asylum seekers. In 2016, 84 percent of asylum cases were granted. Today, that figure has fallen to 57 percent, according to TRAC at Syracuse University. Meanwhile, the government is forcing migrants to wait in Mexico for their immigration court cases or seek asylum in other countries before applying in the U.S., as the national backlog of cases exceeds one million.

Pilsbury, who founded Central American Legal Assistance in 1985, said immigration courts are now dealing with the result of a regional crisis south of the border that’s never been properly addressed since the wars of the 1980s.

“The anti-immigrant people feel it’s broken because people get to come here and ask for asylum and we feel it’s broken because people’s asylum applications aren’t seriously considered,” she explained. “We should be doing more to understand what’s going on in those countries and what we can do to help them address the chronic problems.”

Esperanza and Josue’s cases will now be appealed. Madison said she believes the judge ignored some of her evidence about gangs. She’s now turning to the Board of Immigration Appeals. However, it’s also controlled by the Justice Department — meaning the odds of getting a reversal are slim. If they lose again, the family can go to a federal circuit court which may have a broader definition of who’s eligible for asylum.

But Esperanza and Josue won’t be deported as long as their case is being appealed. On a late summer day, they seemed relaxed while sitting in a Brooklyn park. Esperanza talked about how happy she is that Josue is safe at his public high school, and can even ride a bike at night with his friends.

“He goes out and I’m always trusting the Father that just as he goes out, he comes back,” she said.

Even if they knew they would lose their asylum case, both said they still would have come to the U.S. because the risk of staying in Honduras was too great. Josue said the gang would definitely find him if he ever returned because their networks are so deep throughout the country. He’s now taking the long view. He knows there will be a Presidential election next year.

“It’s like a game of chess,” Josue said. “Any mindset can change at any moment. Maybe Trump changes his mind or maybe not. But I would have always made the decision to come.”

With translation assistance from Alexandra Feldhausen, Lidia Hernández-Tapia and Andrés O’Hara.

Beth Fertig is a senior reporter covering immigration, courts and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.

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CORRECTION: An earlier version of this posting incorrectly identified Beth’s network affiliation. She reports for WNYC.

By clicking on the link at the top and going to Beth’s article on The Gothamist, you will be able to get a link to the original WNYC audio broadcast of this story.

It’s not “rocket science.” Better, fairer outcomes were available that would have fulfilled, rather than mocked, our obligation to provide Due Process and protection under our own laws and international treaties.

Here’s how:

  • Esperanza’s claim is a clear asylum grant for “Honduran women” which is both a “particular social group” (“PSG”) and a persecuted group in Honduras that the government is unwilling or unable to protect.
  • Although the last two Administrations have intentionally twisted the law against Central American asylum seekers, Josue has a clear case for asylum as somebody for whom opposition to gang violence was an “imputed political opinion” that was “at least one central reason” for the persecution. See, e.g, https://www.jeffreyschase.com/blog/2018/6/3/3rd-generation-gangs-and-political-opinion.
  • In any event, on this record, Josue clearly showed that he faced a probability of torture by gangs with the acquiescence of the Honduran government, and therefore should have been granted mandatory protection by the Immigration Judge under the Convention against Torture (“CAT”).
  • The Immigration Judge’s assertion that things are getting better for women in Honduras, one of the world’s most dangerous countries for women where femicide is rampant, not only badly misapplies the legal standard (“fundamentally changed conditions that would eliminate any well founded fear”) but is also totally disingenuous as a factual matter. See, e.g., https://www.nytimes.com/interactive/2019/04/05/opinion/honduras-women-murders.html.
  • Additionally, Honduras remains in a state of armed conflict. See, e.g., https://www.tandfonline.com/doi/full/10.1080/23740973.2019.1603972?needAccess=true. Under an honest Government, granting TPS to Hondurans (as well as Salvadorans and Guatemalans affected by environmental disasters heightened by climate change) would be more than justified.
  • Under honest Government following the rule of law, well-documented cases like this one could be quickly granted by the USCIS Asylum Officer or granted on stipulation in short hearings in Immigration Court. Many more Central Americans could be granted CAT relief, TPS, or screened and approved for asylum abroad. They could thereby be kept off of Immigraton Court dockets altogether or dealt with promptly on “short dockets” without compromising anybody’s statutory or constitutional rights (compromising individual rights is a “specialty” of all the mostly ineffective “enforcement gimmicks” advanced by the Trump Administration).
  • Over time, the overwhelming self-inflicted Immigration Court backlogs caused by the Trump Administration’s “maliciously incompetent” administration of immigration laws (e.g., “Aimless Docket Reshuffling”) would be greatly reduced.
    • That, in turn, would allow the Immigration Courts to deal with cases on a more realistic timeline that would both aid rational, non-White-Nationalist immigration enforcement and provide real justice for those seeking protection under our legal system.
  • As I’ve said before, it’s not “rocket science.” All it would take is more honest and enlightened Government committed to Due Process, good court management, and an appropriate legal application of laws relating to refugees and other forms of protection. I doubt that it would cost as much as all of the bogus “enforcement only gimmicks” now being pursued by Trump as part of his racist, anti-migrant, anti-Hispanic agenda.
  • Poor judicial decision making, as well illustrated by this unfortunate wrongly decided case, not only threatens the lives of deserving applicants for our protection, but also bogs down an already grossly overloaded system with unnecessarily protracted litigation and appeals of cases  that should be “clear grants.”
  • Contrary to the intentionally false “party line” spread by “Big Mac With Lies” and other corrupt Trump sycophants at the DHS and the DOJ, a much, much higher percentage, probably a majority, of asylum applicants from the Northern Triangle who apply at our Southern Border should properly be granted some type of legal protection under our laws if the system operated in the fair and impartial manner that is Constitutionally required. The Trump Administration aided by their sycophants and enablers, all the way up to the feckless Supremes, are literally “getting away with murder” in far, far too many instances. 
  • Consequently, quickly identifying and granting relief to the many deserving applicants would be a more efficient, humane, and lawful alternative to the “Kill ‘Em Before They Get Here” deterrence  programs being pursued by Trump, with the complicity of the Supremes, the Ninth Circuit, and some of the other Federal Circuit Courts who have been afraid to put a stop to the extralegal nonsense going on in our Immigraton Courts, detention centers (the “New American Gulag”), our Southern Border, and countries like Mexico, El Salvador, Guatemala, and El Salvador where we are basically encouraging extralegal abuses and gross human right violations against migrants. It will eventually come back to haunt our nation, or whatever is left of our nation after Trump and his gang of White Nationalist thugs, supporters, appeasers, apologists, and enablers, are done looting and destroying it.

PWS

09-30-19