🔮PROPHETS: MORE THAN SEVEN MONTHS AGO, “SIR JEFFREY”🛡 & I SAID IT WOULD TAKE MORE THAN HOLLOW PROMISES IN AN E.O. TO BRING JUSTICE  FOR VICTIMS OF GENDER VIOLENCE! — Sadly, We Were “Right On” As This Timely Lament From CGRS Shows!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

The problem is very obvious: The “practical scholars” and widely respected international experts in asylum law who should be drafting gender-based regs and issuing precedents as appellate judges @ EOIR remain “frozen out” by Garland and the Biden Administration. Meanwhile, those who helped carry out the Miller/Sessions misogynistic policies of eradicating asylum protection for women of color not only remain on the bench but still empowered by Garland to issue controlling interpretations of asylum law. 

https://cgrs.uchastings.edu/sites/default/files/Deadly%20Inertia%20-%20PSG%20Regs%20Guide_Feb.%202022.pdf

Deadly Inertia: Needless Delay of “Particular Social Group” Regulations Puts Asylum Seekers at Risk

February 10, 2022

On February 2, 2021, President Biden issued an executive order (“EO”) which directed executive branch agencies to review and then take action on numerous aspects of our shattered asylum system.1 Of particular interest to the Center for Gender & Refugee Studies (CGRS), and many asylum seekers, legal experts, and allies, was a provision ordering the Departments of Justice and Homeland Security to conduct a comprehensive examination of whether U.S. treatment of asylum claims based on domestic or gang violence is consistent with international standards, and to propose a joint rule on the meaning of “particular social group,” as that term is derived from international law (emphasis added).2

The deadlines set by the President – August 1, 2021 for the examination of current law on domestic violence and gang claims, and October 30, 2021 for the proposed regulations on particular social group – have come and gone. We are concerned that the administration has offered no indication of its progress on what should be a simple task, given that international law and authoritative international standards on particular social group are clear.3

This reference guide explains why regulations on particular social group are important, why this legal issue has become so contentious, and why there is no good reason for the delay in proposing regulations. We point out that there is a clear path forward for the United States to realign its treatment of asylum claims with established international standards, which is precisely what the EO mandates.

Why are regulations on particular social group important?

While “particular social group” may sound like an arcane topic in the notoriously complex area of asylum law, there is a reason it merited the President’s attention in an EO signed just two weeks after he took office.4 Persecution on the basis of membership in a particular social group is one of only five grounds for refugee status in U.S. and international law and has become the most hotly contested asylum law issue in the United States.

Why has particular social group jurisprudence become so contentious in the United States?

First, the phrase “particular social group” is less intuitively clear than the other grounds for asylum of race, religion, nationality, and political opinion. This ground is understood to reflect a desire on the part of the treaty drafters – and U.S. legislators who incorporated the international refugee definition into our own immigration law – to protect those who don’t fit neatly into the other four categories, and to allow asylum protection to evolve in line with our understanding of human rights. Such refugees might include, for example, women fleeing domestic violence, or LGBTQ+ people persecuted because they do not conform to social norms regarding sexual orientation or gender identity. They might be people fleeing violent retaliation by criminal gangs because they

200 McAllister Street | San Francisco, CA 94102 | http://cgrs.uchastings.edu

reported a crime or testified against a gang member. Or they might simply be related to someone who has defied a gang, and that alone makes them a target.

These people are clearly facing enormous harm, and equally clearly belong to a particular social group under a correct interpretation of the law. 5 But merely belonging to a particular social group does not result in being granted asylum. Only if a person meets all the other elements of the refugee definition, including the heavy burden of showing their group membership is a central reason they will be targeted, will they obtain protection in the United States.

Second, some policymakers and adjudicators fear that if particular social group claims qualify for protection, the “floodgates” will open. The Department of Justice’s Board of Immigration Appeals (BIA) established the legal test for particular social group in 1985 in Matter of Acosta (see below).6 But beginning in 2006, the BIA altered the Acosta test by imposing additional requirements that are nearly impossible to meet.7 The result is that with only one exception, no new particular social groups from any country, no matter how defined, have been accepted in a published BIA decision since that time.

But there is no evidence to support the “floodgates” concern. Decades ago, when women who fled female genital cutting/mutilation were first recognized as a particular social group, some people argued that the United States would be inundated with such claims.8 Those fears never materialized. History shows, and the governments of both the United States and Canada acknowledged at the time, that acceptance of social group claims does not lead to a skyrocketing number of applicants.9

Third, asylum law, including the legal interpretation of particular social group, has been politicized. As part of an overtly anti-immigrant agenda, some politicians have seized upon the floodgates myth to promote increasingly restrictive policies and legal interpretations that depart from international standards. Politically oriented interference with asylum law reached new lows under the previous administration, most notably in 2018 when former Attorney General Sessions overruled his own BIA to issue his unconscionable decision in Matter of A-B-.10

Matter of A-B- was so widely reviled and justly condemned that all major Democratic candidates seeking their party’s presidential nomination in the last election promised to reverse the decision. Doing so was part of candidate Biden’s campaign platform.11 As President he made good on this promise by including the legal questions of domestic violence, gang brutality, and particular social group in the February 2021 EO.

Furthermore, and very much to his credit, Attorney General Garland granted CGRS’s request as counsel to vacate Matter of A-B- in June 2021.12 The law now stands as it did before Sessions’ unlawful interference, with the key precedent case Matter of A-R-C-G-13 recognizing a certain defined particular social group that may provide the basis for asylum for some domestic violence survivors.

However, as explained above, the problem goes beyond Sessions’ decision in Matter of A-B- and stretches back at least as far as 2006, when the BIA began to encumber particular social group claims with additional legal hurdles. As correctly noted in the EO, it is necessary to assess whether U.S. law concerning not only domestic and gang violence claims, but all claims based on particular

2

social group, is consistent with international law. Fortunately there is ample international guidance, which is itself largely based on Acosta, on this exact question.

So why the delay in proposing new regulations?

We can think of no good reason for the agencies’ delay in proposing new regulations on particular social group. From the perspective of both binding international law and authoritative international standards, each of which are named as the framework for particular social group regulations in the EO, the legal analysis is not at all complicated.

To begin with, this is not a new area of the law. The Convention Relating to the Status of Refugees, the source of the refugee definition in which the phrase appears, was drafted in 1951. Our domestic law followed suit in the 1980 Refugee Act. As noted above, the key BIA precedent case interpreting particular social group, Matter of Acosta, was decided in 1985.14 The UN Refugee Agency’s (UNHCR) guidelines on particular social group, which adopt Matter of Acosta, were issued 20 years ago, in 2002.15

Making the job of proposing regulations even simpler, international guidance is clear. It is critical to note that as an inter-governmental organization, UNHCR routinely takes the concerns of governments, including the United States, into account in crafting its legal advice. UNHCR’s guidelines on particular social group were drafted only after a thorough review of State practice, including U.S. law, and an extensive process of external expert consultations with government officials and judges in their personal capacities, academics, and practitioners.16 The consultations process began with a discussion paper on particular social group drafted by a leading U.S. scholar who had previously served as Immigration and Naturalization Service General Counsel.17

How should the United States interpret particular social group to be consistent with international law?

The United States should adopt the “immutability” standard that the BIA set forth in Matter of Acosta, with an alternative – not additional – test of “social perception” which was initially developed by courts in Australia.18 The Acosta test rests on the existence of immutable or fundamental characteristics such as gender to determine whether there is a particular social group. What must be discarded are the BIA’s extraneous requirements of “particularity” and “social distinction.” They have no basis in international law, are not consistent with international standards, are not compelled by the text of the statute, and are not coherent or internally logical. They have themselves spawned an enormous number of confused and confusing cases, including at the federal courts of appeals level, as judges attempt to apply them to real world cases.19

Key Democratic members of Congress with deep knowledge on refugee issues have taken this position, which is consistent with UNHCR’s views. The Refugee Protection Act of 2019, for example, reflects international guidance in its clarification of particular social group.20 Then-Senator Kamala Harris was one of the bill’s original cosponsors.

Additionally, in response to the EO, U.S. and international legal experts have explained that Matter of Acosta provided a workable test, that the BIA’s additional requirements distorted U.S. law in violation

3

of international standards, and that a return to Acosta would be consistent with international standards and offer an interpretation most faithful to the statutory text.21

Why does it matter?

Lives hang in the balance. Women who have survived domestic violence, and all other asylum applicants who must rely on the particular social group ground, are stuck on a deeply unfair playing field. Existing law, even with the vacatur of Matter of A-B-, gives far too much leeway for judges to say no to valid claims. For people wrongly denied protection, deportation can be a death sentence.22

We are concerned that the delay in proposing particular social group regulations reflects an unwillingness on the part of some key actors within the administration to accept that the United States is bound by international law and should realign itself with international standards. The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

1 Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, Feb. 2, 2021, 86 Fed. Reg. 8267 (Feb. 5, 2021).

3 Instead, on the one-year anniversary of the EO, USCIS Director Ur Jaddou held a virtual briefing on USCIS’s progress on this and three other immigration-related EOs, but provided no substantive details.

4 The EO otherwise encompasses the enormous operational, logistical, foreign policy, development, and other challenges required to create a comprehensive regional framework to address root causes, manage migration throughout North and Central America, and provide safe and orderly processing of asylum seekers at the U.S. border.

5 For example, when Harold Koh, a senior State Department advisor, resigned in October 2021 in protest over the expulsion of Haitian and other asylum seekers, he wrote: “Persons targeted by Haitian gangs could easily have asylum claims as persons with well-founded fears of persecution because of their membership in a ‘particular social group’ for purposes of the Refugee Convention and its implementing statute. Indeed, this is precisely the issue that faces the interagency group on joint DOJ/DHS rulemaking pursuant to President Biden’s February 2, 2021 Executive Order, which directed examination of whether

 2 EO, Sec. 4(c) Asylum Eligibility. The Attorney General and the Secretary of Homeland Security shall:

(i) within 180 days of the date of this order, conduct a comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards; and

(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in

8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

 4

 the United States is providing appropriate asylum protection for those fleeing domestic or gang violence in a manner consistent with international standards.’” See https://www.politico.com/f/?id=0000017c-4c4a-dddc-a77e-4ddbf3ae0000.

6 19 I&N Dec. 211 (BIA 1985).

7 Stephen Legomsky and Karen Musalo, Asylum and the Three Little Words that Can Spell Life or Death, Just Security, May 28,

2021, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. 8 Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

9 Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action?, 14 Va. J. Soc. Pol’y & L. 119, 132-133 (2007), available at: https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1560&context=faculty_scholarship.

10 27 I&N Dec. 316 (A.G. 2018). The applicant was a domestic violence survivor whose asylum claim based on particular social group had been granted by the BIA.

11 “The Trump Administration has … drastically restrict[ed] access to asylum in the U.S., including … attempting to prevent victims of gang and domestic violence from receiving asylum [.] Biden will end these policies [.]” See https://joebiden.com/immigration/.

12 28 I&N Dec. 307 (A.G. 2021). He also vacated other problematic decisions that touched on particular social group and gender claims. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021); Matter of A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021).

13 26 I&N Dec. 388 (BIA 2014). 14 19 I&N Dec. 211 (BIA 1985).

15 UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02, available at: https://www.refworld.org/docid/3d36f23f4.html.

16 UNHCR, Global Consultations on International Protection, Update Oct. 2001, available at: https://www.unhcr.org/3b83c8e74.pdf.

17 T. Alexander Aleinikoff, “Protected Characteristics and Social Perceptions: An Analysis of the Meaning of ‘Membership of a Particular Social Group’”, in Refugee Protection in International Law: UNHCR’s Global Consultations on International

Protection (Feller, Türk and Nicholson, eds., 2003), available at: https://www.refworld.org/docid/470a33b30.html.

18 This is the approach recommended by UNHCR, n.15 above.

19 Legomsky and Musalo, Asylum and the Three Little Words that Can Spell Life or Death, n. 7 above, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. See also, Sabrineh Ardalan and Deborah Anker, Re-Setting Gender-Based Asylum Law, Harvard Law Review Blog, Dec. 30, 2021, available at: https://blog.harvardlawreview.org/re-setting-gender-based-asylum-law/.

21 Scholars letter to Attorney General Garland and DHS Secretary Mayorkas, June 16, 2021, available at: https://cgrs.uchastings.edu/sites/default/files/2021.06.16_PSG%20Scholars%20Letter.pdf. See also, letter to Attorney General Garland and DHS Secretary Mayorkas, May 27, 2021, signed by 100 legal scholars discussing the “state protection” element of the proposed regulations, available at: https://cgrs.uchastings.edu/sites/default/files/Law%20Scholars%20State%20Protection%20Letter%205.27.21%20%28FINAL%2 9.pdf.

22 When Deportation Is a Death Sentence, Sarah Stillman, The New Yorker, January 8, 2018, available at: https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence.

             20 The Refugee Protection Act of 2019, Sec. 101(a)(C)(iii) reads: “the term ‘particular social group’ means, without any additional requirement not listed below, any group whose members—

(I) share—

(aa) a characteristic that is immutable or fundamental to identity, conscience, or the exercise of human rights; or (bb) a past experience or voluntary association that, due to its historical nature, cannot be changed; or

(II) are perceived as a group by society.”

See https://www.congress.gov/bill/116th-congress/senate-bill/2936/text?r=4&s=1#toc- idA272A477BC814410AB2FF0E6C99E522F.

      5

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

“Sir Jeffrey and Me
“Sir Jeffrey & Me
Nijmegen, The Netherlands 1997
PHOTO: Susan Chase

You can check out what “Sir Jeffrey” and I had to say back in June 2021 here:

https://immigrationcourtside.com/2021/06/22/sir-jeffrey-chase-garlands-first-steps-to-eradicate-misogyny-anti-asylum-bias-eoir-are-totally-insufficient-without-progressive-personnel-changes/

Unfortunately, my commentary then remains largely true today:

Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

    • Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!

    • The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.

    • There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!

    • Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.

    • Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis. 

    • No regulation can bring decisional integrity and expertise to a body that lacks both!

As the CGRS cogently says at the end of the above posting:

The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

If you follow some of the abysmal anti-asylum, poorly reasoned, sloppy results still coming out of Garland’s BIA and how they are being mindlessly defended by his OIL, you know that a “principled application” of asylum law to protect rather than arbitrarily reject isn’t in the cards! Also, as I have pointed out, even if there were a well written reg on gender based asylum, you can bet that the “Miller Lite Holdover BIA” would come up with intentionally restrictive interpretations that many of the “Trump-era” IJs still packed into EOIR would happily apply to “get to no.” 

You don’t turn a “built and staffed to deny in support of a White Nationalist agenda agency” into a legitimate court system that will insure due process and fair treatment for asylum seekers without replacing judges and bringing in strong courageous progressive leaders.

That’s particularly true at the BIA, where harsh misapplications of asylum law to deny worthy cases has been “baked into the system” for years. And, without positive precedents from expert appellate judges committed to international principles and fair treatment of asylum seekers in the U.S., even a well-drafted reg won’t end “refugee roulette.” 

By this point, it should be clear that the Biden Administration’s intertwined commitments to racial justice and immigrant justice were campaign slogans, and not much more. So, it will be up to advocates in the NDPA to continue the “relentless fight” to force an unwilling Administration and a “contentedly dysfunctional” DOJ that sees equal justice and due process as “below the radar screen” to live up to the fundamental promises of American democracy that they actively betray every day!

🇺🇸Due Process Forever!

PWS

02-13-22

“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.

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

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

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

ADVOCATES ALERT: NEW MEMO TO USCIS ASYLUM OFFICERS ELIMINATES A-R-C-G- AS A BASIS FOR CREDIBLE FEAR — To Get Through Credible Fear Interview, Applicants Must Meet The “Proof Heavy” Evidentiary Test — It Can Be Done! – Administration Obviously Looking At Unrepresented Applicants As “Fish In Barrel” To Be Summarily Denied & Shipped Off To Death, Abuse, Torture – Representation Can Force System To Deal With Real Facts In Northern Triangle!

https://www.vox.com/policy-and-politics/2018/6/19/17476662/asylum-border-sessions

Dara Lind reports at VOX News:

Last week, Attorney General Jeff Sessions issued a sweeping ruling that threatened to radically narrow the standards by which people fleeing domestic or gang violence could claim asylum in the US — or even be allowed to stay in the country to plead their case.

But an internal memo sent to the people actually responsible for implementing Sessions’s ruling at the border, and obtained exclusively by Vox, indicates that Sessions’s revolution isn’t as radical as it seemed — at least not yet.

That could be very good news for parents separated from their children, who will have to face an asylum screening to be allowed to stay in the US in immigration detention after they are criminally charged and convicted under the Trump administration’s “zero tolerance” policy.

The memo obtained by Vox was written by John L. Lafferty, the head of the Asylum Division for US Citizenship and Immigration Services, on Wednesday, June 13, two days after Sessions’s ruling in Matter of A- B- was released. It’s labeled “Interim Guidance” for asylum officers — the people in charge of conducting interviews for asylum and “credible fear” screening interviews for migrants at the border that determine whether they’ll be allowed to stay in the US and pursue an asylum claim.

As the “Interim” label suggests, Lafferty’s memo makes it clear that USCIS will be issuing more directives to asylum officers as it continues to analyze Sessions’s ruling. But in the meantime, it doesn’t dictate sweeping changes to asylum standards.

Michael Bars, a spokesperson for USCIS, told Vox, “Asylum and credible fear claims have skyrocketed across the board in recent years largely because individuals know they can exploit a broken system to enter the U.S., avoid removal, and remain in the country. This exacerbates delays and undermines those with legitimate claims. USCIS is carefully reviewing proposed changes to asylum and credible fear processing whereby every legal means is being considered to protect the integrity of our immigration system from fraudulent claims — the Attorney General’s decision will be implemented as soon as possible.”

But the initial implementation doesn’t appear to be quite as aggressive as that rhetoric implies.

“While the Attorney General made some very sweeping assertions in Matter of A-B-, including as to what he thinks would happen to the claims of different kinds of asylum seekers under this ruling, the legal holding of this case is considerably narrower,” said Anwen Hughes, a lawyer for the advocacy group Human Rights First, when sent the text of the memo. “This guidance focuses on what the AG’s decision actually held.”

Sessions’s ruling declared, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” That language isn’t replicated in the memo — which urges officers to deal with claims on a case-by-case basis.

The only specific change the memo mandates to asylum policy is for officers to stop citing a past Board of Immigration Appeals precedent, Matter of A-R-C-G-, which found that “married women in Guatemala who are unable to leave their relationship” constituted a particular social group — allowing some domestic violence victims to claim asylum based on their persecution as members of that group.

But while A-R-C-G- was the only precedent Sessions explicitly overturned, his ruling also said that “any other” precedent from the Board of Immigration Appeals was also moot if it had defined “particular social group” more broadly than Sessions did last week.

The initial implementation memo from USCIS doesn’t mention any such rulings. It emphasizes that officers should make decisions based on two precedents Sessions held up as gooddecisions — both of which denied asylum claims based on gang violence — but doesn’t identify any decisions that are too broad under Sessions’s standards.

That means that for the moment, at least, asylum officers would be able to determine that a victim of domestic or gang violence still deserves asylum — or deserves to plead her asylum case — if there’s another precedent decision that they think fits the case.

The USCIS memo does emphasize that people seeking asylum based on gang violence or any other “private crime” need to demonstrate that the government in their home country “condoned the behavior or demonstrated a complete helplessness to protect the victim.”

Before Sessions’s ruling, immigrants could claim asylum if they were persecuted by a nonstate group and the government was “unable or unwilling” to prevent it. Technically, that’s still the standard. But Sessions’s formulation about condoning or “complete helplessness” could set the bar higher for what counts as unable or unwilling — especially because his ruling emphasized (in a passage quoted by the implementation memo) that police ignoring crime reports doesn’t mean they’re unable or unwilling to help the victim.

This guidance could be very good news for parents separated from children

The implementation of Sessions’s asylum ruling has real and immediate impacts for asylum seekers — including the thousands of parents who have been separated from their children at the border and prosecuted in recent weeks.

After being prosecuted and sentenced (usually to “time served”), asylum seekers are returned to the custody of Immigration and Customs Enforcement (ICE) for deportation. They face “expedited” deportation, without a full immigration court hearing, unless they can demonstrate that they have a “credible fear” of persecution and should stay in the US to pursue an asylum claim.

At the moment, the overwhelming majority of people are passing their “credible fear” screenings. Sessions sees this as a sign of widespread fraud and lax standards, and his ruling last week was explicitly written to raise the bar not only for eventual approvals or denials of asylum, but for the initial screenings as well.

If Sessions’s ruling were being interpreted as broadly as possible by USCIS, many parents would likely find it impossible to pass their screening interviews, and would find themselves deported without their children and with little time to locate or contact them. But because USCIS appears to be relatively cautious in its implementation, parents in custody — at least for the moment — appear to have a better shot of staying in the US to pursue their asylum case and reunite with their children.

Of course, asylum claims and initial screenings are both partly up to the discretion of individual asylum officers. It’s totally possible that some asylum offices will interpret this memo as an instruction to get much harsher. But the memo doesn’t force them to do that, at least in its interim form.

The text of the memo obtained by Vox is below.


From: Lafferty, John L
Sent: Wednesday, June 13, 2018 5:20 PM
To: [redacted by Vox]
Subject: Asylum Division Interim Guidance – Matter of A- B-, 27I&N Dec. 316 (A.G. 2018)

Asylum Division colleagues:

I’m sure that most of you have heard and/or read about the decision issued by Attorney General Sessions on Monday in Matter of A- B-, 27I&N Dec. 316 (A.G. 2018).

Below is our Office of Chief Counsel’s summary of the AG’s decision, which is followed by Asylum’s summaries of two 2014 decisions – Matter of M-E-V-G and Matter of W-G-R- – that were cited by the AG in support of his decision. While we continue to work with our OCC colleagues on final guidance for the field, we are issuing the following interim guidance on how to proceed with decision-making on asylum cases and CF/RF [credible fear/reasonable fear] screening determinations:

Matter of A-R-C-G- has been overruled and can no longer be cited to or relied upon as supporting your decision-making on an asylum case or in a CF/RF determination.

Effective upon issuance of this guidance, no affirmative grant of asylum or positive CF/RF screening determination should be signed off on by a supervisor as legally sufficient, or issued as a final decision/determination, that specifically cites to or relies upon Matter of A-R-C-G- as justification for the result. Instead, it should be returned to the author for reconsideration consistent with the next bullet.

All pending and future asylum decisions and CF/RF screening determinations finding that the individual has shown persecution or a well-founded fear of persecution on account of membership in a particular social group must require that the applicant meet the relevant standard by producing evidence that establishes ALL of the following:

A cognizable particular social group that is 1) composed of members who share a common immutable characteristic; 2) defined with particularity, and 3) socially distinct within the society in question;

Membership in that PSG;

That membership in the PSG was or is a central reason for the past and/or future persecution; and

The harm was and/or will be inflicted by the government or by non-governmental actors that the government is unable or unwilling to control.

When the harm is at the hands of a non-governmental actor, the applicant must show that the government condoned the behavior or demonstrated a complete helplessness to protect the victim. This new decision stresses that, in applying this standard, “[t]he fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.” A-B- at 337-338. (See RAIO Lesson Plan – Definition of Persecution and Eligibility Based on Past Persecution, Section 4.2 “Entity the Government Is Unable or Unwilling to Control”, for further guidance).

The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

Every asylum decision and CF/RF screening determination must consider and analyze whether internal relocation would be reasonable, as provided for at 8 CFR 208.

If you have questions on this interim guidance, please raise them up your local chain of command so that they can be brought to the attention of HQ Asylum QA Branch.

Thank you!!

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

Sure, the BIA has worked hard to reject almost every gang-related formulation in the past. But, that’s often 1) without effective representation; 2) without the respondent presenting the necessary specific and voluminous evidence; and 3) by intentionally misconstruing facts — more or less along the lines of Sessions in A-B-.

Keep it simple:

“Women in El Salvador” actually fits well within the BIA’s three PSG criteria and is “at least one central for persecution” in many cases.

“Public opponents of gangs in X Country” also should be a pretty straightforward fit with a proper factual record and specific legal arguments. It also fits the “political” ground if the accurate factual basis is presented and documented effectively.

The reality is that gender is a major reason for persecution all over the world  — one of the largest, in fact — and is well within the 1952 Convention’s ambit! Likewise, in countries where all real experts say gangs have infiltrated or in many cases are actually acting in concert with the Government, public opposition represents fundamental values that are limited to a readily identifiable segment of the population for which the punishment is immediate and severe. Likewise, it’s a rather clear case of political persecution, just like “whistleblowers” and “union activists.”

For years, the advocacy community has been willing to cooperate with the Government’s highly restrictive “incremental approach” to protection, because it was showing signs of real, if slow, progress and other viable alternatives such as “prosecutorial discretion” and “Special Immigrant Juvenile Status” were often available. Now, Sessions has intentionally reversed almost all of that progress and “returned us to the Dark Ages” as one expert put it.

So, no more “Mr. Nice Guy!” If it’s war that Sessions & Co. want, why not give it to them? Now is the time to simply “blow the roof off” of the Executive’s overly restrictive, unjustifiable, often disingenuous, confusing, contradictory, and clearly biased misinterpretation of what’s really happening in the Northern Triangle and elsewhere and how international protection laws must and should be applied if they are to have any meaning in the 21st century.

And, forget the bogus “floodgates” arguments. “Christians,” Jews,” “Muslims,” “Blacks,” “Pentecostals” are all potentially huge groups that have been recognized for asylum purposes.

Sure, maybe if forced to interpret the asylum and CAT laws properly Congress with withdraw from all of our international obligations so that nobody gets in. I doubt it. But if it happens, it happens.

At least it will then be out in the open that we are a “bogus” democracy that spreads false myths about our values, but won’t actually live up to them when the going gets tough (which, incidentally and not surprisingly,  is also a symptom of “False Christianity”).

Then, maybe when folks figure out that “we aren’t who we say we are,” they will stop coming! Or, we could simply set up machine gun nests along the border and gun down all the unwanted women and children before they can become a burden on our “justice” system. In the end, the results of that might not be lots different from using our asylum and “court” systems as a “deterrent” to those fleeing for their lives. Just more honest about who we really are deep down, when  it counts.

PWS

06-19-18

 

 

TRUMP TREATS KIDS AS HUMAN PAWNS IN UGLY POLITICAL CHESS GAME – Administration’s Continued Spreading Of False Narrative On Migration Makes Continuing Migration Outside of Legal System Inevitable!

https://www.washingtonpost.com/politics/trump-cites-as-a-negotiating-tool-his-policy-of-separating-immigrant-children-from-their-parents/2018/06/15/ade82b80-70b3-11e8-bf86-a2351b5ece99_story.html

Michael Scherer & Josh Dawsey report for the Washington Post:

President Trump has calculated that he will gain political leverage in congressional negotiations by continuing to enforce a policy he claims to hate — separating immigrant parents from their young children at the southern border, according to White House officials.

On Friday, Trump suggested he would not change the policy unless Democrats agreed to his other immigration demands, which include funding a border wall, tightening the rules for border enforcement and curbing legal entry. He also is intent on pushing members of his party to vote for a compromise measure that would achieve those long-standing priorities.

Trump’s public acknowledgment that he was willing to let the policy continue as he pursued his political goals came as the president once again blamed Democrats for a policy enacted and touted by his own administration.

“The Democrats are forcing the breakup of families at the Border with their horrible and cruel legislative agenda,” he tweeted. After listing his demands in any immigration bill, he added, “Go for it! WIN!”

The attempt to gain advantage from a practice the American Academy of Pediatrics describes as causing children “irreparable harm” sets up a high-stakes gambit for Trump, whose political career has long benefited from harsh rhetoric on immigration.

Democrats have latched onto the issue and vowed to fight in the court of public opinion, with leaders planning trips to the border to highlight the stories of separated families, already the focus of news media attention. Democratic candidates running for vulnerable Republican seats also have begun to make the harsh treatment of children a centerpiece of their campaigns.

The policy has cracked Trump’s usually united conservative base, with a wide array of religious leaders and groups denouncing it. The U.S. Conference of Catholic Bishops and the Southern Baptist Convention issued statements critical of the practice.

The Rev. Samuel Rodriguez, who delivered a prayer at Trump’s inauguration, signed a letter calling the practice “horrible.” Pastor Franklin Graham of Samaritan’s Purse, a vocal supporter of the president’s who has brushed aside past Trump controversies, called it “terrible” and “disgraceful.”

Besides increasing the odds of a broader immigration bill, senior Trump strategists believe that the child separation policy will deter the flow of migrant families across the border. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security. The figure is the only one released by the goverment.

“The president has told folks that in lieu of the laws being fixed, he wants to use the enforcement mechanisms that we have,” a White House official said. “The thinking in the building is to force people to the table.”

Trump reinforced that notion Friday morning at the White House when he suggested Democrats alone had the power to alter the policy.

“I hate the children being taken away,” Trump said.

The president used a similar strategy last year as he sought to gain approval for his immigration demands by using the lure of protection for young immigrants brought to the United States as children. That effort, which ran counter to Trump’s earlier promise to sign a bipartisan bill protecting the young immigrants, foundered in Congress.

. . . .

The current policy resulted from a decision made in April by Attorney General Jeff Sessions to prosecute all migrants who cross the border, including those with young children. Those migrants had avoided detention during the administrations of George W. Bush and Barack Obama. Because of a 1997 court settlement that bars children from being imprisoned with parents, Justice Department officials now say they have no choice but to isolate the children.

Sessions and White House press secretary Sarah Huckabee Sanders have defended the policy as a sound, and biblical, decision to enforce the law.

“The previous administration wouldn’t prosecute illegal aliens who entered the country with children,” Sessions said Thursday in Fort Wayne, Ind., citing biblical advice to follow laws. “It was de facto open borders.”

The biblical underpinnings have been challenged by religious leaders.

“There’s definitely a groundswell of opposition from virtually every corner of the Christian community,” said Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. “People are able to understand immediately the drive of parents to protect their child and to understand the horror of splitting up vulnerable children from their parents.”

Yet several key Trump administration officials support the family separation policy, including Chief of Staff John F. Kelly, Homeland Security Secretary Kirstjen Nielsen and senior adviser Stephen Miller, a vocal supporter of stricter immigration laws.

Some senior officials think Democrats will be pressured by the policy to cut an immigration deal.

“If they aren’t going to cooperate, we are going to look to utilize the laws as hard as we can,” said a second White House official.

Others have argued that the main benefit of the policy is deterrence. Miller has said internally that the child separations will bring the numbers down at the border, a goal that Trump wants to achieve. Miller and Marc Short, the White House director of legislative affairs, have argued that immigration legislation is unlikely to pass this summer, officials said.

“The side effect of zero tolerance is that fewer people will come up illegally, and fewer minors would be put in danger,” said a third senior administration official. “What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?”

. . . .

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

Please read the complete article at the link.

So, the choice is ““What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?” Not really!

The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments. 

Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.

Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks rally want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.

My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.

Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.

Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.

The thing we will not be able to do is to halt human migration solely by law enforcement actions taken at “our end” of the chain. That is, unless we wish to establish a “Stalinist type state” that is so grim and repressive that nobody wants to come any more. 

Kids as human pawns. Child abuse as policy. Dreamers as hostages. Jesus told us to do it. It’s the Democrats fault. I really hate to let Jeff abuse children, but I have no choice. Refugee women fleeing gang controlled states reduced to human scum who should just accept their beatings and rape and get in the non-existent line for legal immigration that we want to eliminate. That is, if they actually live long enough to get in the non-existent line, which is unlikely. Biased judges cheering the chance to sign death warrants for the most vulnerable among us. Courts clogged with refugees being prosecuted for seeking refuge while being pressured by seizure of their children into giving up rights.

Once again, I’ve been proved right: We are actively diminishing ourselves as a nation every day; but, it isn’t stopping, and won’t in the long run stop, human migration. Sure, there is a natural ebb and flow that responds in some minor ways to our futile attempts to stop it. Sort of like throwing up man-made sand bars to stop beach erosion. Works for a few months or even years, but eventually the inevitable forces of nature win out. It sure seems to me that it would be smarter to work with the flow of the river and turn it to our advantage, rather than trying to make it reverse course — an exercise in futility that only serves to diminish the humanity of each of us.

PWS

06-16-18

 

JIM CROW’S RETURN: SESSIONS ENDS TOXIC WEEK BY REVEALING HIMSELF AS ANTI-CHRIST! — Makes Bogus Claim That Christian Teaching Supports Child Abuse & Cruelty In The Name of “The Law” — African Americans Well Understand AG’s Perverted Bible Quote Once Used To Justify Slavery And Dehumanization (As Well As Nazism & Apartheid) — Shines Spotlight On His Own Deviance From The Merciful, Healing, Kind, & Forgiving Message of Christ!

Here’s a wonderful response to Sessions by Kansas City Attorney Andrea C. Martinez:

The “Christian” B.S. Litmus Test
By , Andrea C. Martinez, Esq.

To my amazing friends who are atheist, agnostic, or non-Christian. To the good-willed and the pissed-off. To the people who are genuinely confused as to how Jefferson Sessions and Sarah Huckabee Sanders can use the Bible as a justification for abhorrent policies such as the separation of immigrant children from their parents at the border or the persecution of vulnerable asylum seekers, I am a Jesus-follower with a Bible degree from a Christian college and I GIVE YOU PERMISSION TO CALL B.S.

Please join me in calling B.S. whenever you hear people use the Bible to justify the oppression of others. Especially when they misuse and cite Romans 13 to justify their mistreatment. While Romans 13:4 calls us to submit to government authorities because “the one in authority is God’s servant for your good” it does not require us to submit to an unjust law. If the government authority is not acting in a way that reflects God’s law, which is the loving treatment of others, Jesus invites us to participate in civil disobedience. Remember when Jesus healed a man’s hand on the Sabbath in violation of the Jewish law (Mark 3:1-6) and says, “Which is lawful on the Sabbath: to do good or to do evil, to save life or to kill?” Matthew 3:4. Then he goes ahead and heals the man. There are numerous other examples in the Bible of civil disobedience that I would be happy to analyze with you at a different time (like the story of Shadrach, Meshach, and Abednego).

We must look first and foremost to Jesus Himself and His words when deciding whether a law is just and therefore should be followed. Jesus gave us a “Greatest Commandment” litmus test for determining which actions are really done in his name: “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.” Luke 6:31. And Jesus provided us a pretty simple “B.S. Litmus Test” (my words, not Jesus’!) to determine whether an action or law reflects His heart. The B.S. Litmus Test is this: “is this law/action/policy treating others as I would like to be treated?” (Matthew 7:12). And a second question would be, “does this law reflect love or fear?” If the latter, it is not from God. Because “perfect love casts out fear.” 1 John 4:18.

Regarding Jesus’ exact instructions on the treatment of immigrants, read Matthew 25: 34-46. Jesus refers to the immigrant/refugee/foreigner as “the stranger” and says, “Then the King will say to those on his right, ‘Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger (refugee/immigrant/foreigner) and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’ “Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you something to drink?When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?’

“The King will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’

“Then he will say to those on his left, ‘Depart from me, you who are cursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.’
“They also will answer, ‘Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?’ “He will reply, ‘Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.’ “Then they will go away to eternal punishment, but the righteous to eternal life.” -JESUS

PLEASE BE ON GUARD: when you hear a government official use a passage like Romans 13 to try to justify actions that contradict the commandments of Jesus Himself, it is akin to a lawyer trying to convince a judge that a policy or regulation should be followed even though a statute or the Constitution of the United States itself prohibits it. Oh wait, that is exactly what is happening in the Jeff Sessions video above. The United States has ratified international refugee treaties legally obliging our nation to consider the claims of each asylum-seeker on its own merit and the Attorney General has now created his own self-indulging policy persecuting asylum seekers as a “deterrent” to seeking the protection they are legally entitled to. Laws trump policies in the hierarchy of authority, and Jesus’ words trump unjust government action in the spiritual context.

So please join me in calling BS on policies that oppress the immigrant, the refugee, and the foreigner. No citation to Romans 13 can ever trump Jesus’ calling to love the immigrant in Matthew 25. I stand with Jesus-followers and non-Christians alike in the disgusted renunciation of any attempt to cite Holy Scripture as a justification to oppress the weak or the vulnerable. I proudly stand with Jesus and will continue to defend the “stranger” in my law practice as an act of worship to my Jesus who I know loves and cares for them even more than I do.

Thank You,

Andrea C. Martinez, Esq.

Attorney/Owner

” src=”blob:http://immigrationcourtside.com/1416d79c-b6be-44d1-aab8-d9f091b8c723″ alt=”cid:image001.jpg@01D238F4.0AFDDA30″ class=”Apple-web-attachment”>

7000 NW Prairie View Road, Suite 260

Kansas City, MO 64151

(816) 491-8105: phone

(816) 817-2480: fax

info@martinezimmigration.com

www.martinezimmigration.com

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

Thanks Andrea!

I call B.S. But, then most of what Sessions says is B.S.

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

Here’s another from JRube in the WashPost:

Attorney General Jeff Sessions displayed an appalling lack of appreciation for the religious establishment clause, not to mention simple human dignity. Speaking to a meeting of the U.S. Conference of Catholic Bishops, and in the wake of the Church’s condemnation of the barbaric policy of separating children from their parents at the border, Sessions proclaimed: “Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government, because God has ordained them for the purpose of order. Orderly and lawful processes are good in themselves and protect the weak and lawful.” Later in the day, White House press secretary Sarah Huckabee Sanders repeated his religious admonition to obey the law.

This is horrifically objectionable on multiple grounds. First, he is a public employee and must uphold the First Amendment’s establishment clause. If Sessions wants to justify a policy, he is obligated to give a secular policy justification. (Citing the Bible — inaptly — to Catholic bishops who exercise their religious conscience in speaking out against family separation may be the quintessential example of chutzpah.) Second, he is a policymaker, in a position tochange a position that is inconsistent with our deepest values, traditions and respect for human rights. Third, the bishops were not advocating civil disobedience; they were objecting to an unjust law. Sessions is trying to use the Bible to squelch dissent.

We should point out that invoking this Biblical passage has a long and sordid history in Sessions’s native South. It was oft-quoted by slave-owners and later segregationists to insist on following existing law institutionalizing slavery (“read as an unequivocal order for Christians to obey state authority, a reading that not only justified southern slavery but authoritarian rule in Nazi Germany and South African apartheid”).

I’m no expert in Christianity, but the Rev. Martin Luther King Jr. was when he drafted his letter from the Birmingham jail:

Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

Sessions perfectly exemplifies how religion should not be used. Pulling out a Bible or any other religious text to say it supports one’s view on a matter of public policy is rarely going to be effective, for it defines political opponents as heretics.

The bishops and other religious figures are speaking out as their religious conscience dictates, which they are morally obligated to do and are constitutionally protected in doing. A statement from the conference of bishops, to which Sessions objected, read in part:

At its core, asylum is an instrument to preserve the right to life. The Attorney General’s recent decision elicits deep concern because it potentially strips asylum from many women who lack adequate protection. These vulnerable women will now face return to the extreme dangers of domestic violence in their home country. This decision negates decades of precedents that have provided protection to women fleeing domestic violence.

Reminding the administration of the meaning of family values, the bishops continued, “Families are the foundational element of our society and they must be able to stay together. While protecting our borders is important, we can and must do better as a government, and as a society, to find other ways to ensure that safety. Separating babies from their mothers is not the answer and is immoral.”

The Catholics are not alone. The administration’s vile policy has alarmed a wide array of faith leaders. The Southern Baptist Convention issued their own statement. It is quoted at length because it is so powerful:

WHEREAS, Every man, woman, and child from every language, race, and nation is a special creation of God, made in His own image (Genesis 1:26–27); and

WHEREAS, Longings to protect one’s family from warfare, violence, disease, extreme poverty, and other destitute conditions are universal, driving millions of people to leave their homelands to seek a better life for themselves, their children, and their grandchildren; and

WHEREAS, God commands His people to treat immigrants with the same respect and dignity as those native born (Leviticus 19:33–34Jeremiah 7:5–7Ezekiel 47:22Zechariah 7:9–10); and

WHEREAS, Scripture is clear on the believer’s hospitality towards immigrants, stating that meeting the material needs of “strangers” is tantamount to serving the Lord Jesus Himself (Matthew 25:35–40Hebrews 13:2); and

WHEREAS, Southern Baptists affirm the value of the family, stating in The Baptist Faith and Message that “God has ordained the family as the foundational institution of human society” (Article XVIII), and Scripture makes clear that parents are uniquely responsible to raise their children “in the training and instruction of the Lord” (Ephesians 6:4).  . . .

RESOLVED, That the messengers to the Southern Baptist Convention meeting in Dallas, Texas, June 12–13, 2018, affirm the value and dignity of immigrants, regardless of their race, religion, ethnicity, culture, national origin, or legal status; and be it further

RESOLVED, That we desire to see immigration reform include an emphasis on securing our borders and providing a pathway to legal status with appropriate restitutionary measures, maintaining the priority of family unity, resulting in an efficient immigration system that honors the value and dignity of those seeking a better life for themselves and their families; and be it further

RESOLVED, That we declare that any form of nativism, mistreatment, or exploitation is inconsistent with the gospel of Jesus Christ; and be it further

RESOLVED, That we encourage all elected officials, especially those who are members of Southern Baptist churches, to do everything in their power to advocate for a just and equitable immigration system, those in the professional community to seek ways to administer just and compassionate care for the immigrants in their community, and our Southern Baptist entities to provide resources that will equip and empower churches and church members to reach and serve immigrant communities. . . .

Rabbi David Wolpe dryly observed that “until 2018, I don’t believe any reader of the Bible has argued that separating families is rooted in the Bible, and if the Bible is about obeying the government, it is hard to understand what all those prophets were yelling at the kings about.” (Meanwhile, 26 Jewish organizations sent a letter condemning the policy to Sessions.)

Peter Wehner of the Ethics and Public Policy Center has written extensively on the role of religion in politics. “I would say that this is just the most recent, but also one of the most egregious, ways that those who call themselves Christians are disfiguring and discrediting their faith. They are living in an inverted moral world, where the Bible is being invoked to advance cruelty,” he said. “Rather than owning up to what they are doing, they are trying to sacralize their inhumane policies. They are attempting to harm children and then dress it up as Christian ethics.”

He added: “This shows you the terrible damage that can be done to the Christian witness when the wrong people attain positions of power. They subordinate every good thing to their ideology, twisting and distorting everything they must to advance their political cause. In this case, it’s not simply that an authentic Christian ethic is subordinate to their inhumane politics; it is that it is being thoroughly corrupted, to the point that they are using the Bible to justify what is unjustifiable.”

If the administration is embarrassed by a policy they are trying to insist is required by law (that is untrue, and I know the prohibition against lying is very biblical) they should change it. Trump and his aides need to stop shifting blame to other politicians, and stop telling Christians what their obligations are. Frankly, the lack of outrage from Trump’s clique of evangelical supporters on this issue is not simply unusual given the near-universal outrage in faith-based communities, but is a reminder that leaders of  “values voters” traded faith for the political game of power and access. As Wehner put it, “To watch the Christian faith be stained in this way by people like Jeff Sessions and Sarah Huckabee Sanders is painful and quite a disturbing thing to watch. I don’t know whether they realize the defilement they’re engaging in, but that’s somewhat beside the point. The defilement is happening, and they are leading the effort. It’s shameful, and it’s heretical.”

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

Remarkably, Sessions claims to be a Christian and a Methodist (although I can’t for the life of me find a speck of the actual kind, merciful, forgiving, teachings of Jesus Christ in any aspect of Sessions’s life, career, or actions). He’s one of the most “unChristian” people I’ve ever witnessed in American public life. And, I’ve seen some pretty bad actors, going all the way back to infamous Wisconsin GOP Senator Joe McCarthy! In his own way, Sessions is just as far removed from the true meaning of Christ’s teaching as his pagan, idolatrous boss, Trump.

At any rate, the Methodist Council of Bishops has joined other religious denominations in condemning Sessions’s policies of cruelty and child abuse.

Faith leaders’ statement on family separation

FOR IMMEDIATE RELEASE
Thursday, June 7, 2018

WASHINGTON, D.C. — The Council of Bishops of The United Methodist Church is joining other faith organizations in a statement urging the U.S. government to stop its policy of separating immigrant families.

Below is the full statement signed by dozens of faith organizations. Bishop Kenneth H.  Carter, president of the Council of Bishops, signed on behalf of the Council.

FAITH LEADERS’ STATEMENT ON FAMILY SEPARATION 

Recently, the U.S. Administration announced that it will begin separating families and criminally prosecuting all people who enter the U.S. without previous authorization. As religious leaders representing diverse faith perspectives, united in our concern for the well-being of vulnerable migrants who cross our borders fleeing from danger and threats to their lives, we are deeply disappointed and pained to hear this news.

We affirm the family as a foundational societal structure to support human community and understand the household as an estate blessed by God. The security of the family provides critical mental, physical and emotional support to the development and wellbeing of children. Our congregations and agencies serve many migrant families that have recently arrived in the United States. Leaving their communities is often the only option they have to provide safety for their children and protect them from harm. Tearing children away from parents who have made a dangerous journey to provide a safe and sufficient life for them is unnecessarily cruel and detrimental to the well-being of parents and children.

As we continue to serve and love our neighbor, we pray for the children and families that will suffer due to this policy and urge the Administration to stop their policy of separating families.

His Eminence Archbishop Vicken Aykazian
Diocesan Legate and
Director of the Ecumenical Office
Diocese of the Armenian Church of America

Mr. Azhar Azeez
President
Islamic Society of North America

The Most Rev. Joseph C. Bambera
Bishop of Scranton, PA
Chair, Bishops’ Committee for Ecumenical and Interreligious Affairs

Senior Bishop George E. Battle, Jr.
Presiding Prelate, Piedmont Episcopal District
African Methodist Episcopal Zion Church

Bishop Kenneth H. Carter, Jr.
President, Council of Bishops
The United Methodist Church

The Most Rev. Michael B. Curry
Presiding Bishop
Episcopal Church (United States)

The Rev. Dr. John C. Dorhauer
General Minister & President
United Church of Christ

The Rev. Elizabeth A. Eaton
Presiding Bishop
Evangelical Lutheran Church in America

The Rev. David Guthrie
President, Provincial Elders’ Conference
Moravian Church Southern Province

Mr. Glen Guyton
Executive Director
Mennonite Church USA

The Rev. Teresa Hord Owens
General Minister and President
Christian Church (Disciples of Christ)

Rabbi Rick Jacobs
President
Union for Reform Judaism

Mr. Anwar Khan
President
Islamic Relief USA

The Rev. Dr. Betsy Miller
President, Provincial Elders’ Conference
Moravian Church Northern Province

The Rev. Dr. J. Herbert Nelson II
Stated Clerk
Presbyterian Church (USA)

Rabbi Jonah Pesner
Director
Religious Action Center of Reform Judaism

The Rev. Don Poest
Interim General Secretary
The Rev. Eddy Alemán
Candidate for General Secretary
Reformed Church in America

Senior Bishop Lawrence Reddick III
Presiding Bishop, The 8th Episcopal District
Christian Methodist Episcopal Church

The Rev. Phil Tom
Executive Director
International Council of Community Churches

Senior Bishop McKinley Young
Presiding Prelate, Third Episcopal District
African Methodist Episcopal Church

###

Media Contact:
Rev. Dr. Maidstone Mulenga
Director of Communications – Council of Bishops
The United Methodist Church
mmulenga@umc-cob.org
202-748-5172

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

Ed Kilgore over at NY Magazine also nails Sessions’s noxious hypocrisy:

http://nymag.com/daily/intelligencer/2018/06/no-jeff-sessions-separating-families-isnt-biblical.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Intelligencer-%20June%2015%2C%202018&utm_term=Subscription%20List%20-%20Daily%20Intelligencer%20%281%20Year%29

No, Jeff Sessions, Separating Kids From Their Parents Isn’t ‘Biblical’

By

St. Paul would probably like Jeff Sessions to keep his name out of his mouth. Photo: Getty Images

When he spoke to a law enforcement group in Indiana today, the attorney general of the United States was clearly angry about religious objections to his administration’s immigration policies. He may have had in mind incidents like this very important one this week (as notedby the National Catholic Reporter):

The U.S. bishops began their annual spring assembly by condemning recent immigration policies from the Trump administration that have separated families at the U.S.-Mexico border and threatened to deny asylum for people fleeing violence.

The morning session here began with a statement, but by its end escalated to numerous bishops endorsing the idea of sending a delegation to the border to inspect the detention facilities where children are being kept and even floating the possibility of “canonical penalties” for those involved in carrying out the policies.

Being a Protestant and all, Sessions has no fear of the kind of “canonical penalties” Catholic bishops might levy. But perhaps he is aware of an official resolution passed by his own United Methodist Church in 2008 (and reaffirmed in 2016), which reads in part:

The fear and anguish so many migrants in the United States live under are due to federal raids, indefinite detention, and deportations which tear apart families and create an atmosphere of panic. Millions of immigrants are denied legal entry to the US due to quotas and race and class barriers, even as employers seek their labor. US policies, as well as economic and political conditions in their home countries, often force migrants to leave their homes. With the legal avenues closed, immigrants who come in order to support their families must live in the shadows and in intense exploitation and fear. In the face of these unjust laws and the systematic deportation of migrants instituted by the Department of Homeland Security, God’s people must stand in solidarity with the migrants in our midst.

So Sessions decided he’d smite all these ninny-faced liberal clerics with his own interpretation of the intersection of Christianity and immigration:

In his remarks, Sessions hit back at the “concerns raised by our church friends about separating families,” calling the criticism “not fair or logical” and quoting scripture in his defense of the administration’s tough policies.

“Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government because God has ordained them for the purpose of order,” Sessions said. “Orderly and lawful processes are good in themselves and protect the weak and lawful.”

Those who are unacquainted with the Bible should be aware that the brief seven-verse portion of St. Paul’s Epistle to the Romans has been throughout the ages cited to oppose resistance to just about every unjust law or regime you can imagine. As the Atlantic’s Yoni Appelbaum quickly pointed out, it was especially popular among those opposing resistance to the Fugitive Slave Act in the run-up to the Civil War. It was reportedly Adolf Hitler’s favorite biblical passage. And it was used by defenders of South African Apartheid and of our own Jim Crow.

Sessions’s suggestion that Romans 13 represents some sort of absolute, inflexible rule for the universe has been refuted by religious authorities again and again, most quoting St. Augustine in saying that “an unjust law is no law at all,” and many drawing attention to the overall context of Paul’s epistle, which was in many respects the great charter of Christian liberty and the great rebuke to legalism in every form. Paul was pretty clearly rejecting a significant sentiment among Christians of his day: that civil authorities deserved no obedience in any circumstance.

Beyond that, even if taken literally, in Romans 13 Paul is the shepherd telling the sheep that just as they must love their enemies, they must also recognize that the wolf is part of a divinely established order. In today’s context, Jeff Sessions is the wolf, and no matter what you think of his policies, he is not entitled to quote the shepherd on his own behalf. Maybe those desperate women and men at the border should suck it up and accept their terrible lot in life and defer to Jeff Sessions’s idolatry toward those portions of secular immigration law that he and his president actually support. But for the sake of all that’s holy, don’t quote the Bible to make the Trump administration’s policies towards immigrant families sound godly. And keep St. Paul out of it.

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

Last, but certainly not least among my favorite rebuttals to Sessions is this article from Marissa Martinelli at Slate incorporating a video clip from John Oliver which captures the smallness, meanness, and lack of humane values of Sessions perfectly:

https://slate.com/culture/2018/06/stephen-colbert-quotes-the-bible-to-jeff-sessions-video.html

Stephen Colbert Tells Jeff Sessions to Go Reread the Bible Before He Defends Trump’s Child Separation Policy

By

There’s nothing funny about the Trump administration’s policy of separating children from their parents at the border, which doesn’t make it an ideal topic for late night hosts. Stephen Colbert acknowledged that difficulty directly on The Late Show on Thursday night, explaining that he usually only addresses tragic stories on the show if everyone is already talking about them. But he’s willing to make an exception:

That’s my job: to give you my take on the conversation everyone’s already having. With any luck, my take is funnier than yours, or I would be watching you. But this story is different, because this is the conversation everybody should be having. Attorney General and man dreaming of legally changing his name to “Jim Crow” Jeff Sessions has instituted a new policy to separate immigrant kids from their parents at the border.

An estimated 1,358 children have been taken from their families so far, with some officials reportedly telling their parents that the children were being taken away for a bath, only to never return them. “Clearly, no decent human being could defend that,” said Colbert. “So Jeff Sessions did.”

Colbert, who is devoutly Catholic, especially took issue with Sessions quoting the bible—specifically, Romans 13, the same passage used to defend slavery in the 1840s—to justify the policy as morally acceptable. Colbert suggested that Sessions might want to go back and reread that bible, and quoted Romans 13:10 to him. “Love your neighbor as yourself. Love does no harm to a neighbor. Therefore love is the fulfillment of the law,” he recited, before ripping into Sessions’s use of the bible as a smokescreen: “I’m not surprised Sessions didn’t read the whole thing. After all, Jesus said, ‘Suffer the children to come unto me’ but I’m pretty sure all Sessions saw was the words children and suffer and said ‘I’m on it.’”

Colbert concluded the segment by borrowing a phrase from Samantha Bee: “If we let this happen in our name, we are a feckless … country.”

Here’s a link to the video:

https://www.youtube.com/watch?v=j4KaLkYxMZ8#action=share

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

A NOTE TO MY WAYWARD CHILD, JEFF

I am very concerned about our relationship, Jeff.

For I was hungry Jeff, and you gave me nothing to eat.

I was thirsty, Jeff, and you gave me nothing to drink. 

I was a stranger seeking refuge, Jeff, and you did not invite me in.

I needed clothes, Jeff, and you clothed me only in the orange jumpsuit of a prisoner.

I was sick and in a foul prison you called “detention,” Jeff, and you mocked me and did not look after me.

I said “suffer the children to come unto me,” Jeff, and you made my children suffer.

In your arrogant ignorance, Jeff, you might ask when did I see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?’

But, Jeff, I was right there before you, in a caravan with my poor sisters, brothers, and children, having traveled far, seeking shelter and refuge from mistreatment and expecting mercy and justice under your laws. But, in your prejudice and ignorance, Jeff, you did not see me because I did not look like one of you. For you see, Jeff, as you did not show love, mercy, forgiveness, kindness, and human compassion for the least of my children, you did not do for me.

And so, Jeff, unless you repent of your wasted life of sins, selfishness, meanness, taking my name and teachings in vain, and mistaking your often flawed view of man’s laws for my Father’s will, you must go away to eternal punishment. But, the poor, the vulnerable, the abused, and the children who travel with me and those who give us aid, compassion, justice, and mercy will accompany me to eternal life.

For in truth, Jeff, although you yourself might be immoral, none of God’s children is ever “illegal” to  Him. Each time you spout such nonsense, you once again mock me and my Father by taking our names, teachings, and values in vain.

Wise up, Jeff, before it’s too late.

Your Lord & Would Be Savior,

J.C.

 

 

 

HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”

Women Need Not Apply

Those looking for legal analysis should read no further.  The following is a cry from the heart.

The respondent’s personal nightmare began the year after her marriage.  For the next 15 years, she was subjected to relentless physical, sexual, and emotional abuse.

It is most apt that Donald Trump became president by beating a woman.  His campaign historically provoked millions to march in angry protest of his denigration of women on his first full day in office.

“The violence inflicted on [her] took many forms.  Her husband beat her repeatedly, bashing her against the wall and kicking her, including while she was pregnant.  He raped her on countless occasions.”

On Monday, Trump’s Attorney General announced that women who are victims of domestic violence should no longer be deemed to merit protection from our government in the form of political asylum.

Sessions’ action was shockingly tone deaf.  As the wonderful Rebecca Solnit wrote in her 2013 essay “The Longest War:” “We have an abundance of rape and violence against women in this country and on this Earth, though it’s almost never treated as a civil rights or human rights issue, or a crisis, or even a pattern.  Violence doesn’t have a race, a class, a religion, or a nationality, but it does have a gender.”  The year after Solnit wrote those words, our Department of Justice took a step in the right direction.  In recognizing domestic violence as a basis for asylum, our government was finally recognizing such gender-based abuse as a human rights issue, at least in the limited forum of immigration law.

“He also frequently threatened to kill her, at times holding a knife to her neck, and at other times brandishing a gun or, while she was pregnant, threatening to hang her from the ceiling by a rope.”  The above were supported by sworn statements provided by the respondents’ neighbors.

It is only very recently that our society has begun to hold accountable those who commit gender-based abuses against women.  #MeToo is a true civil rights movement, one that is so very long overdue.  In opposing such movement, Jeff Sessions is casting himself as a modern day George Wallace.  It bears repeating that no one, no one, was challenging the settled precedent that victims of domestic violence may be granted asylum as members of a particular social group.  When the precedent case was before the Board of Immigration Appeals, the Department of Homeland Security, i.e. the enforcement agency prosecuting the case, filed a brief in which it conceded that the group consisting of “married women in Guatemala who are unable to leave their relationship” satisfied all of the legal criteria, and was therefore a proper particular social group under the law.  No one has appealed or challenged that determination in the four years since.  Who is Jeff Sessions, who has never practiced immigration law in his life, to just toss out such determination because he and only he disagrees?

The respondent’s “husband controlled, humiliated, and isolated her from others.  He insulted her ‘constantly,’ calling her a ‘slut’ or ‘dog.’  He did not want her to work outside the house and believed ‘a woman’s place was in the home like a servant.’  When he came home in the middle of the night, he forced her out of bed to serve him food, saying things like ‘Bitch, feed me.”

Like Wallace before him, who in 1963 stood in front of the door of the University of Alabama trying in vain to block the entry of four black students, Sessions is trying to block a national movement whose time has come.  As with Wallace and the Civil Rights Movement, justice will eventually prevail.  But now as then, people deserving of his protection will die in the interim.

“Although [her] husband frequently slept with other women, he falsely accused her of infidelity, at times removing her undergarments to inspect her genitals.  He also beat their children in front of her, causing her serious psychological damage.”

The AG’s decision was intentionally released during the first day of the Immigration Judges’ Training Conference.  There have been ideological-based appointments of immigration judges under both the Trump and Bush administrations.  Several persons present at the conference reported that when the decision was announced, some immigration judges cheered. It was definitely a minority; the majority of immigration judges are very decent, caring people.  But it was more than a few; one of my sources described it as “many,” another as “a noteworthy minority.”

Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death.  Will there be any consequences for their actions?  Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision?  Or would that have been viewed as dangerous?

The respondent “believes her life will be in danger” if returned to her country, “where her ex-husband, supported by his police officer brother, has vowed to kill her.  She does not believe there is anywhere” in her country “she could find safety.

Victims of domestic violence will continue to file applications for asylum.  They will argue before immigration judges that their claims meet the legal criteria even under the AG’s recent decision.  Unfortunately, some of those applicants will have their cases heard by immigration judges who, when they heard that the woman whose claim was described in the italicized sections was denied asylum by Jeff Sessions, and will now likely be deported to suffer more such abuse or death, cheered.

The sections in italics are the facts of the asylum-seeker in Matter of A-B-, (including quotes from her appeal brief) who was denied asylum on Monday by Jeff Sessions.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

fullsizeoutput_40da.jpeg

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog     Archive     Contact

Powered by Squarespace

Look no further to understand why the U.S. Immigration Courts have been struggling for years with issues of quality control, bias, prejudice, and un-judicial conduct. That’s notwithstanding that the vast majority of us were working hard to be “honest referees,” set good examples, and treat those coming before us with dignity, respect, fairness, and humanity. A few colleagues who “don’t get the message” or who operate in a “parallel universe” actually bring the whole system into disrepute and undermine the efforts of those functioning as fair and independent judges.
And, make no mistake about it, Jeff Sessions aims to institutionalize bias, disrepute, and “worst judicial practices.” He’s designing a system that will reward scofflaws like him while punishing and forcing out judges who conscientiously adhere to their oath to put Due Process first! Look at what’s happening in the rest of the DOJ under Sessions, as talented and conscientious career attorneys are being displaced by political hacks with law degrees.
Following A-R-C-G-, the BIA, an inherently conservative tribunal if ever there was one, had made some modest progress in reigning in the minority of Immigration Judges who historically had anti-asylum attitudes, particularly toward women from the Northern Triangle. Sessions intentionally derailed such efforts and gave ugly encouragement to judges to “do whatever is necessary” to deny virtually all PSG claims that have provided refuge for Central Americans.
An independent U.S. Immigration Court with a strong and diverse Appellate Division and a merit selection system for judges supervised by the Article III Courts would be a necessary initial step in correcting these defects while establishing a system that will fairly and efficiently decide cases — without “bogus gimmicks” like trying to block access to entire groups of migrants, intentionally blocking access to counsel, using the court system as a “deterrent,” or using cruel, inhuman, and degrading detention practices to duress migrants into surrendering their already limited rights.
Eventually, as Jeffrey says, Sessions’s White Nationalist program of “turning back the clock” for women of color and other asylum seekers will fail. The current “Rogue State,” will be replaced by a Government re-committed to Due Process for all, regardless of status, and to re-establishing the U.S. as a leader in promoting and respecting international standards for refugee protection.
Inevitably, many, including defenseless women and children, will die unnecessarily, be tortured, and suffer other unspeakable human rights abuses during our struggle to end the “Trumpist Rogue State” and re-establsh the principles of liberal democracy and humanitarian international leadership in the United States. While such deaths and human rights abuses might be an inevitable result of the abusive reign of Trump and Sessions, nobody, particularly those claiming to be fair and impartial judges, should cheer or glory in that obscene result!
PWS
06-15-18

MORE ARTICLES FEATURE “GANG OF RETIRED JUDGES’ STATEMENT” RE: SESSIONS’S OUTRAGEOUS ATTACK ON SETTLED PRINCIPLES OF PROTECTION LAW! — Media Exposing Corrupt, Inherently Unfair, Biased “Court” System Where The Prejudiced Prosecutor “Cooks” The Results to His Liking! — Jeff Sessions Degrades The American Legal System & Our National Values Each Day He Remains In Office!

“Group Leader” Hon. Jeffrey Chase forwards these items:

Samantha Schmidt (long-lost “Cousin Sam?” sadly, no, but I’d be happy to consider her an honorary member of the “Wauwatosa Branch” of the Wisconsin Schmidt Clan) writes for the Washington Post:

Aminta Cifuentes suffered weekly beatings at the hands of her husband. He broke her nose, burned her with paint thinner and raped her.

She called the police in her native Guatemala several times but was told they could not interfere in a domestic matter, according to a court ruling. When Cifuentes’s husband hit her in the head, leaving her bloody, police came to the home but refused to arrest him. He threatened to kill her if she called authorities again.

So in 2005, Cifuentes fled to the United States. “If I had stayed there, he would have killed me,” she told the Arizona Republic.

And after nearly a decade of waiting on an appeal, Cifuentes was granted asylum. The 2014 landmark decision by the Board of Immigration Appeals set the precedent that women fleeing domestic violence were eligible to apply for asylum. It established clarity in a long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.

But on Monday, Attorney General Jeff Sessions overturned the precedent set in Cifuentes’s case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law. (Unlike the federal courts established under Article III of the Constitution, the immigration court system is part of the Justice Department.)

For critics, including former immigration judges, the unilateral decision undoes decades of carefully deliberated legal progress. For gender studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”

“If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”

. . . .

A group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter in response to Sessions’s decision, calling it an “affront to the rule of law.”

The Cifuentes case, they wrote, “was the culmination of a 15 year process” through the immigration courts and Board of Immigration Appeals. The issue was certified by three attorneys general, one Democrat and two Republican. The private bar and law enforcement agencies, including the Department of Homeland Security, agreed with the final determination, the former judges wrote. The decision was also supported by asylum protections under international refugee treaties, they said.

“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote.

Courts and attorneys general have debated the definition of a “particular social group” since the mid-1990s, according to Musalo.

“It took the refugee area a while to catch up with the human rights area of law,” Musalo said.

A series of cases led up to the Cifuentes decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the United States. The case, known as Matter of Kasinga, centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was lead attorney in the case, which held that fear of female genital cutting could be used as a basis for asylum.

“Fundamentally the principle was the same,” as the one at stake in Sessions’s ruling, Musalo said. Female genital cutting, like domestic violence in the broader sense, generally takes place in the “private” sphere, inflicted behind closed doors by relatives of victims.

Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.

Then, after years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentes case, known as Matter of A-R-C-G.

“I actually thought that finally we had made some progress,” Musalo said. Although the impact wasn’t quite as pronounced as many experts had hoped, it was a step for women fleeing gender-based violence in Latin America and other parts of the world.

Now, Musalo says, Sessions is trying to undo all that and is doing so at a particularly monumental time for gender equality in the United States and worldwide.

“We’ve gone too far in society with the MeToo movement and all of the other advances in women’s rights to accept this principle,” Musalo said.

“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”

. . . .

Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals, wrote on his blog that Sessions sought to encourage immigration judges to “just find a way to say no as quickly as possible.” (Schmidt authored the decision in the Kasinga case extending asylum protection to victims of female genital mutilation.)

Sessions’s ruling is “likely to speed up the ‘deportation railway,’ ” Schmidt wrote. But it will also encourage immigration judges to “cut corners, and avoid having to analyze the entire case,” he argued.

“Sessions is likely to end up with sloppy work and lots of Circuit Court remands for ‘do overs,’ ” Schmidt wrote. “At a minimum, that’s going to add to the already out of control Immigration Court backlog.”

https://www.washingtonpost.com/news/morning-mix/wp/2018/06/12/back-to-the-dark-ages-sessions-asylum-ruling-reverses-decades-of-womens-rights-progress-critics-say/?utm_term=.47e7a6845c9a

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

Picking on our most vulnerable and denying them hard-earned legal protections that had been gained incrementally over the years. Certainly, can’t get much lower than that!

Whether you agree with Sessions’s reasoning or not, nobody should cheer or minimize the misfortune of others as Sessions does! The only difference between Sessions or any Immigration Judge and a refugee applicant is luck. Not merit! I’ve met many refugees, and never found one who wanted to be a refugee or even thought they would have to become a refugee.

An Attorney General who lacks fundamental integrity, human values, and empathy does not belong at the head of this important judicial system.

In my career, I’ve probably had to return or sign off on returning more individuals to countries where they didn’t want to go than anybody involved in the current debate. Some were good guys we just couldn’t fit into a badly flawed and overly restrictive system; a few were bad guys who deserved to go; some, in between. But, I never gloried in, celebrated, or minimized anyone’s suffering, removal, or misfortune.  Different views are one thing; overt bias and lack of empathy is another.

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

From PRI.com:

Tania Karris and Angilee Shah report for PRI:

Attorney General Jeff Sessions’ decision on asylum seekers is 30 pages long.

Advocates and many judges say that the decision is extraordinary, not only because the attorney general took steps to overrule the court’s’ prior rulings, but because the decision that victims of certain kinds of violence can qualify for asylum has been previously reviewed over the course of decades.

A group of 15 former immigration judges signed a letter on June 11 calling the decision “an affront to the rule of law.” They point out that the decision Sessions overturned, a precedent cited in the “Matter of A-B-” decision that he was reviewing, had been certified by three attorney generals before him: one Democrat and two Republicans.

“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the letter says. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”

In his decision, Sessions said “private criminal activity,” specifically being a victim of domestic violence, does not qualify migrants for asylum. Rather, victims have to show each time that they are part of some distinct social group (a category in international and US law that allows people to qualify for refugee status) and were harmed because they are part of that group — and not for “personal reasons.”

Sessions said US law “does not provide redress for all misfortune. It applies when persecution arises on the account of membership in a protected group and the victim may not find protection except by taking refuge in another country.”

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-government actors will not qualify for asylum,” the decision reads. In a footnote, he also says that few of these cases would merit even being heard by judges in the first place because they would not pass the threshold of “credible fear.”

But attorney Karen Musalo says every case has to be decided individually. Muslao is the director of the Center for Gender and Refugee Studies at the UC Hastings College of the Law and has been representing women in immigration hearings for decades. She is concerned that some asylum officers will see this decision as a directive to turn people away from seeing a judge. “That’s patently wrong,” she says.

US Citizenship and Immigration Services, the agency that conducts initial screenings for asylum cases (known as “credible fear interviews”) did not respond to a request for information about how the decision might change the work they do.

Musalo’s is among the attorneys representing A-B-, a Salvadoran woman identified only by her initials in court filings, whose case Sessions reviewed. Her center was part of a group that submitted a brief of over 700 pages in the case; that brief was not cited in Sessions’ decision. The brief reviewed impunity in El Salvador, for example, for those who commit violence against women and also had specific evidence about A-B- and how local police failed to protect her from domestic violence.

“What’s surprising is how deficient and flawed his understanding of the law and his reasoning is. The way he pronounces how certain concepts in refugee law should be understood and interpreted is sort of breath-taking,” says Musalo. “He was reaching for a result, so he was willing to distort legal principles and ignored the facts.”

To Musalo, this case is about more than asylum, though. She says it’s a surprising, damaging twist in the broader #MeToo movement. Sessions is “trying to turn back the clock on how we conceptualize protections for women and other individual,” she says. “In the bigger picture of ending violence against women, that’s just not an acceptable position for our country to take and we’re going to do everything we can to reverse that.”

That includes monitoring cases in the system now and making appeals in federal courts, which could overturn Sessions’ decision. Congress, Musalo says, could also take action.

Because Sessions controls the immigration courts, which are administrative courts that are part of the Department of Justice rather than part of the judiciary branch, immigration judges will have to follow his precedent in determining who qualifies for asylum. District court and other federal judges

Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges, said she was troubled by Sessions’ lack of explanation for why he intervened in this particular case.

The attorney general’s ability to “exercise veto power in our decision-making is an indication of why the court needs true independence” from the Justice Department, Tabaddor told the New York Times.

Immigration judge Dana Leigh Marks, the immigration judges association past president, says the group has been advocating for such independence for years.

“We have a political boss. The attorney general is our boss and political considerations allow him, under the current structure, to take certain cases from the Board of Immigration Appeals and to choose to rule on those cases in order to set policy and precedent,” she says. “Our organization for years has been arguing that … there’s a major flaw in this structure, that immigration courts are places where life and death cases are being heard.”

Therefore, she adds, they should be structured “like a traditional court.”

Sessions’ decision will have immediate implications for domestic violence victims currently seeking asylum in the US.

Naomi, who asked to be identified by a pseudonym because her case is pending in New York, is from Honduras. Her former boyfriend there threw hot oil at her, but hit her 4-year-old son instead. The boyfriend threatened them with a gun — she fled, ultimately coming to the US where she has some family. She told us that she tried to get the police to help, but they wouldn’t.

Naomi’s attorney, Heather Axford with Central American Legal Assistance in Brooklyn, said they might need to try a new argument to keep her client in the US.

“We need to come up with new ways to define a particular social group, we need to explore the possibility of when the facts lend themselves to a political opinion claim, and we need to make claims under the Convention Against Torture,” she told WNYC Monday. The US signed and ratified the Convention Against Torture in 1994.

Mary Hansel, deputy director of the International Human Rights Clinic at Loyola Law School in Los Angeles, says the Sessions decision goes against US human rights obligations.

“An evolving body of international legal authorities indicates that a state’s failure to protect individuals (whether citizens or asylum seekers) from domestic violence may actually amount to torture or cruel, inhuman or degrading treatment,” Hansel writes in an email to PRI. In international human rights law, states need to protect individuals from harm. “Essentially, when women are forced to endure domestic violence without adequate redress, states are on the hook for allowing this to happen,”

Naomi’s story is horrific, but it is not unusual for women desperate to escape these situations to flee to the US. Many of these women had a high bar for winning an asylum case to begin with. They have to provide evidence that they were persecuted and documents to support their case. Sometimes, lawyers call expert witnesses to explain what is happening in their country of origin. Language barriers, lack of access to lawyers, contending with trauma and often being in detention during proceedings also contribute to making their cases exceptionally difficult.

Sessions’ decision will make it even harder.

In justifying tighter standards, Sessions often claims that there is fraud in the system and that asylum seekers have an easy time arguing their cases.

“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States” Sessions told Phoenix radio station KTAR in May. “Well, that’s obviously false, but some judges have gone along with that.”

Unlike other court proceedings, immigrants who do not have or cannot afford attorneys are not guaranteed legal counsel. There are no public defenders in immigration court. And just 20 percent of those seeking asylum are represented by attorneys, according to a report by the Transactional Records Access Clearinghouse at Syracuse University.

The Trump administration has taken several steps to clear the 700,000 cases pending in immigration court.  At the end of May, Sessions instituted a quota system for immigration judges, requiring them to decide 700 cases each year and have fewer than 15 percent of cases be overturned on appeal.

Marks told NPR that the quota could hurt judicial independence. “The last thing on a judge’s mind should be pressure that you’re disappointing your boss or, even worse, risking discipline because you are not working fast enough,” she said.

According to TRAC, the courts decided more than 30,000 cases in the 2017 fiscal year compared to about 22,000 in 2016. Some 61.8 percent of these cases were denied; the agency does not report how many of the claims were due to domestic or gang violence, or for other reasons. For people from Central America, the denial rate is 75 to 80 percent. Ninety percent of those who don’t have attorneys lose their cases.

Correction: An earlier version of this story incorrectly said Sessions’ overturned a decision in the “Matter of A-B-.”

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

Here’s another one from Bea Bischoff at Slate:

How the attorney general is abusing a rarely used provision to rewrite legal precedent.

Photo illustration: Attorney General Jeff Sessions looking down against a background of written script.
Photo illustration by Slate. Photos by Alex Wong/Getty Images, Library of Congress.

On Monday, Attorney General Jeff Sessions told a group of immigration judges that while they are responsible for “ensur[ing] that our immigration system operates in a manner that is consistent with the laws,” Congress alone is responsible for rewriting those laws. Sessions then announced that he would be issuing a unilateral decision regarding asylum cases later in the day, a decision he told the judges would “provide more clarity” and help them “rule consistently and fairly.” The decision in Matter of A-B-, which came down shortly after his remarks, reverses asylum protections for victims of domestic violence and other persecution.

During his speech Sessions framed his decision in Matter of A-B- as a “correct interpretation of the law” that “advances the original intent” of our immigration statute. As a matter of law, Sessions’ decision is disturbing. It’s also alarming that this case ended up in front of the attorney general to begin with. Sessions is abusing a rarely used provision to rewrite our immigration laws—a function the attorney general himself said should be reserved for Congress. His zealous self-referral of immigration cases has been devastatingly effective. Sessions is quietly gutting immigration law, and there’s nothing stopping him from continuing to use this loophole to implement more vindictive changes.

Normally, an immigration judge is the first to hear and decide an immigration case. If the case is appealed, it goes in front of the Board of Immigration Appeals before being heard by a federal circuit court. In a peculiarity of immigration law, however, the attorney general is permitted to pluck cases straight from the Board of Immigration Appeals for personal review and adjudication. Sessions, who was famously denied a federal judgeship in 1986 because of accusations that he’d made racist comments, now seems to be indulging a lingering judicial fantasy by exploiting this provision to the fullest. Since January 2018, Sessions has referred four immigration cases to himself for adjudication, putting him on track to be one of the most prolific users of the self-referral provision since 1956, when attorneys general stopped regularly reviewing and affirming BIA cases. By comparison, Eric Holder and Loretta Lynch certified a total four cases between them during the Obama administration.

Sessions is not using these cases to resolve novel legal issues or to ease the workload of DHS attorneys or immigration judges. Instead, he is using the self-referral mechanism to adjudicate cases that have the most potential to limit the number of people granted legal status in the United States, and he’s disregarding the procedural requirements set up to control immigration appeals in the process.

A close look at the Matter of A-B- case shows exactly how far out of bounds Sessions is willing to go. Matter of A-B- began when Ms. A-B- arrived in the United States from El Salvador seeking asylum. Ms. A-B- had been the victim of extreme brutality at the hands of her husband in El Salvador, including violent attacks and threats on her life. The local police did nothing to protect her. When it became clear it was only a matter of time before her husband tried to hurt her again, Ms. A-B- fled to the United States. Upon her arrival at the U.S. border, Ms. A-B- was detained in Charlotte, North Carolina. Her asylum case was set to be heard by Judge Stuart Couch, a notoriously asylum-averse judge who is especially resentful of claims based on domestic violence.

During her trial, Ms. A-B- testified about the persecution she’d faced at the hands of her husband and provided additional evidence to corroborate her claims. Despite the extensive evidence, Judge Couch found Ms. A-B-’s story was not credible and rejected her asylum claim. Ms. A-B- then appealed her case to the BIA. There, the board unanimously found that Ms. A-B-’s testimony was in fact credible and that she met the requirements for asylum. Per their protocol, the BIA did not grant Ms. A-B- asylum itself but rather sent the case back down to Judge Couch, who was tasked with performing the required background checks on Ms. A-B- and then issuing a grant of asylum in accordance with their decision.

Judge Couch, however, did not issue Ms. A-B- a grant of asylum, even after the Department of Homeland Security completed her background checks. Instead, he improperly tried to send the case back to the BIA without issuing a new decision, apparently because he was personally unconvinced of the “legal validity” of asylum claims based on domestic violence. Before the BIA touched the case again, Attorney General Sessions decided he ought to adjudicate it himself.

After taking the case, Sessions asked for amicus briefs on the question of “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum.” The question of whether private criminal activity like domestic violence can in some instances lead to a grant of asylum had not been at issue in Matter of A-B-. The issue raised in Ms. A-B-’s case was whether her claims were credible, not whether asylum was available for victims of private criminal activity. In fact, persecution at the hand of a private actor who the government cannot or will not control is contemplated in the asylum statute itself and has been recognized as a grounds for asylum for decades. The question of whether domestic violence could sometimes warrant asylum also appeared to be firmly settled in a 2014 case known as Matter of A-R-C-G-.

The question the attorney general was seeking to answer was actually so settled that the Department of Homeland Security, the agency responsible for prosecuting immigration cases, submitted a timid brief to Sessions politely suggesting that he reconsider his decision to take on this case. “This matter does not appear to be in the best posture for the Attorney General’s review,” its brief argued, before outright acknowledging that the question of whether private criminal activity can form the basis of an asylum claim had already been clearly answered by the BIA. The attorney general, despite his alleged desire to simplify the jobs of immigration prosecutors and judges, ignored DHS’s concerns and denied the agency’s motion. “[BIA] precedent,” Sessions wrote in his denial, “does not bind my ultimate decision in this matter.” Sessions, in short, was going to rewrite asylum law whether DHS liked it or not.

Sessions not only ignored DHS concerns about the case but, as 16 former immigration judges pointed out in their amicus brief, trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerable women. First, he failed to require Couch, the original presiding judge, to make a final decision before sending the case back to the BIA. The regulations controlling immigration appeals allow an immigration judge to send a case to the BIA only after a decision has been issued by the original judge. Next, Sessions failed to wait for the BIA to adjudicate the case before snapping it up for his personal analysis. Even if Judge Couch hadn’t improperly sent the case back to the BIA, Sessions was obligated to wait for the BIA to decide the case before intervening. The self-referral provision permits the attorney general to review BIA decisions, not cases that are merely awaiting adjudication.

Finally, and perhaps most tellingly, the question Sessions sought to answer in this case, namely “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum” was not a question considered by any court in Matter of A-B-. Rather, it was one Sessions seemingly lifted directly from hardline immigration restrictionists, knowing that the answer had the potential to all but eliminate domestic violence–based asylum claims.

On June 11, after receiving 11 amicus briefs in support of asylum-seekers like Ms. A-B- and only one against, the attorney general ruled that private activity is not grounds for asylum, including in cases of domestic violence. Ms. A-B-’s case, in Sessions’ hands, became a vehicle by which to rewrite our asylum laws without waiting on Congress.

The attorney general’s other self-referred decisions are likewise plagued by questionable procedure. In Matter of E-F-H-L-, Sessions seized on a case from 2014 as an opportunity undo the longstanding requirement that asylum applicants be given the opportunity for a hearing. Like in Matter of A-B-, Sessions did procedural somersaults to insert himself into Matter of E-F-H-L-, using a recent decision by the immigration judge in the case to close the proceedings without deciding the asylum claim as grounds to toss out the original BIA ruling on the right to a hearing. Without so much as a single phone call to Congress, Sessions effectively rescinded the requirement that asylum seekers are entitled to full hearings. He also mandated that the judge reopen Mr. E-F-H-L-’s case years after he thought he was safe from deportation.

In Matter of Castro-Tum, a case Sessions referred to himself in January, he used his powers to make life more difficult for both immigrants and immigration judges by banning the use of “administrative closure” in removal proceedings. Administrative closure allowed immigration judges to choose to take cases off their dockets, indefinitely pausing removal proceedings. In Matter of Castro-Tum, Sessions made a new rule that sharply curtails the use of the practice and allows DHS prosecutors to ask that judges reschedule old closed cases. The result? The potential deportation of more than 350,000 immigrants whose cases were previously closed. In addition, judges now have so many hearings on their dockets that they are scheduling trials in 2020.

As CLINIC, an immigration advocacy group, pointed out, Sessions appeared be using his decision in Matter of Castro-Tum to improperly develop a new rule on when judges can administratively close immigration cases. Normally, such a new rule would need to go through a fraught bureaucratic process under the Administrative Procedures Act before being implemented. Instead of going through that lengthy process, however, Sessions simply decreed the new rule in his decision, bypassing all the usual procedural requirements.

The cases that Sessions has chosen to decide and the procedural leaps he’s taken to adjudicate them show that his goal is to ensure that fewer people are permitted to remain in the United States, Congress be damned. So far, his plan seems to be working. As a result of Sessions’ decision in Matter of A-B-, thousands of women—including many of the women who are currently detained after having their children torn from their arms at our border—will be shut out of asylum proceedings and deported to their countries of origin to await death at the hands of their abusers.

While Sessions’ decisions trump BIA precedent, they do not override precedent set by the federal circuit courts on immigration matters, much of which contradicts the findings he’s made in his decisions. While immigration attorneys are scrambling to protect their clients with creative new advocacy strategies, the only real way to stop Sessions’ massacre is to listen to him when he says Congress needs to fix our immigration laws. In doing so, the legislative branch could not only revise our immigration system to offer meaningful paths to legal status for those currently shut out of the system, but could eliminate the needless attorney general review provision altogether and force Sessions to keep his hands out of immigration case law.

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

Sessions’s shameless abuses of our Constitution, Due Process, fundamental fairness, the true rule of law, international standards, common morality, and basic human values are beyond astounding.

I agree with Bea that this requires a legislative solution to 1) establish once and for all that gender based asylum fits squarely within the “particular social group” definition; and 2) establish a U.S. Immigration Court that is independent of the Executive Branch.

A few problems, though:

  • Not going to happen while the GOP is in control of all branches of Government. They can’t even get a “no brainer” like DACA relief done. Trump and his White Nationalist brigade including Sessions are now firmly in control.
  • If you don’t win elections, you don’t get to set the agenda. Trump’s popularity has consistently been below 50%. Yet the majority who want to preserve American Democracy and human decency have let the minority control the agenda. If good folks aren’t motivated to vote, the country will continue its descent into the abyss.
  • No more Obama Administrations, at least on immigration. The Dreamer fiasco, the implosion of the Immigration Courts, and the need for gender protections to be written into asylum law were all very well-known problems when Obama and the Dems swept into office with a brief, yet significant, veto proof Congress. The legislative fix was hardly rocket science. Yet, Obama’s leadership failed, his Cabinet was somewhere between weak and incompetent on immigration, and the Dems on the Hill diddled. As a result “Dreamers” have been left to dangle in the wind — a bargaining chip for the restrictionist agenda; children are being abused on a daily basis as a matter of official policy under Sessions; women and children are being returned to death and torture; and the U.S. Immigration Courts have abandoned Due Process and are imploding in their role as a “junior Border Patrol.” Political incompetence and malfeasance have “real life consequences.” And, they aren’t pretty!

There have been some bright spots for the Dems in recent races. But, the November outcome is still totally up for grabs. If the Trump led GOP continues its stranglehold on all branches of Government, not only will children suffer and women die, but there might not be enough of American Democracy left to save by 2020.

Get out the vote! Remove the kakistocracy!

PWS

06-13-18

 

 

LEGAL ANALYSIS YOU CAN USE FROM JASON DZUBOW AT THE ASYLUMIST: “INTERNATIONAL GOLD STANDARD” TO ANTI-ASYLUM SCREED – The Disturbing Fall Of U.S. State Department Country Reports & Why Advocates Must 1) Disabuse Courts Of The View That They Are Reliable; & 2) Develop & Present Objective Alternatives

http://www.asylumist.com/2018/05/02/disingenuous-state-department-report-seeks-to-block-refugee-women/

Disingenuous State Department Report Seeks to Block Refugee Women

by JASON DZUBOW on MAY 2, 2018

The 2017 State Department Country Reports on Human Rights Practices is out, and the news is not good. The Report makes clear that the Department of State (“DOS”) has joined our government’s effort to block asylum seekers by any means necessary–including undermining their claims by lying about conditions in the home countries.

A lie is a lie, no matter how many times they try to tell you otherwise.

Let’s start with a bit about the Report itself. Each year, the State Department issues a human rights report for every country in the world. Information in the Report is gleaned from U.S. diplomats “in country,” and from other sources. The U.S. government uses the Reports in various ways, including to help evaluate asylum cases. So when a Report indicates that country conditions are safe, it becomes more difficult for asylum seekers to succeed with their claims.

There have always been issues with these Reports. From the point of view of advocates like me, the Reports sometimes minimize a country’s human rights problems. When that happens, we can submit other evidence–NGO reports, expert witness reports, news articles–to show that our clients face danger despite the optimistic picture painted by the DOS Report. But the fact is, whatever other evidence we submit, the DOS Report carries a lot of weight. It’s certainly not impossible to win an asylum case where the Report is not supportive, but it is more difficult. I imagine that’s doubly true for pro se asylum applicants, who might not be aware of the Report, and might not submit country condition information to overcome it.

That’s why this year’s DOS Report is so disappointing, especially with regards to certain populations. The group I am concerned with today is female asylum seekers from the Northern Triangle (El Salvador, Guatemala, and Honduras). Countries in the Northern Triangle are very dangerous for women. As a result, many women from this region have come to the United States in search of protection.

Over the past two decades, the U.S. government has grudgingly recognized that some such women meet the definition of refugee. But even so, it is still very difficult for most such women–especially if they are unrepresented–to navigate the convoluted path to asylum.

The Trump Administration is working on several fronts to make it even more difficult for women from the Northern Triangle to obtain asylum. For one thing, the Attorney General seems to be reconsidering precedential case law that has cracked open the door for female asylum seekers. He is also moving to charge some “illegal border crossers” with crimes (though it is legal to seek asylum at a port of entry). And now, the 2017 DOS Report is undercutting the factual basis for such claims by whitewashing the dangerous conditions faced by women in Central America.

Just looking at some basic statistics, it’s obvious that something is up. The below chart compares the number of words in the “Women” portions of the 2016 and 2017 DOS Reports for Northern Triangle countries. In each case, the length of the Women’s section has been dramatically reduced:

Country   2016 Report   2017 Report % Reduction
El Salvador       1364       423       69%
Guatemala       1212       283       77%
Honduras       1235       365       70%

 

As you can see, the “Women” sections of the 2017 Reports are more than 2/3 shorter than in the 2016 Reports. But numbers alone tell only part of the story. Let’s look at some of what the DOS has eliminated from the 2017 Report in the sub-section called “Rape and Domestic Violence”  (and, by the way, DOS has entirely eliminated the portion of the Report devoted to “Reproductive Rights,” but that’s a story for another day). The Report for Honduras is typical, and so we’ll use that as an example.

The 2017 Report for Honduras states:

The law criminalizes all forms of rape of men or women, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. The penalties for rape range from three to nine years’ imprisonment, and the courts enforced these penalties.

Sounds pretty good, aye? The government of Honduras seems to be prosecuting rapists, including spouse-rapists, and the penalties for rape are significant. But here are a few lines from the 2016 Report that didn’t make it into the most recent version:

Violence against women and impunity for perpetrators continued to be a serious problem…. Rape was a serious and pervasive societal problem. The law criminalizes all forms of rape, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. Prosecutors treat accusations of spousal rape somewhat differently, however, and evaluate such charges on a case-by-case basis…. Violence between domestic and intimate partners continued to be widespread…. In March 2015 the UN special rapporteur on violence against women expressed concern that most women in the country remained marginalized, discriminated against, and at high risk of being subjected to human rights violations, including violence and violations of their sexual and reproductive rights….

So basically what we have is this: The 2017 Report is not a human rights report at all. Rather, it is a report on the state of the law in Honduras. Of course, when the law is not enforced and persecutors enjoy impunity (as indicated in the 2016 Report), laws on the books are not so relevant (and it’s really quite a bit worse than what I’ve indicated here, since the 2016 Report already minimized the violent environment in Honduras–for this reason, in our cases, we often rely on the more honest U.S. Travel Advisory and the OSAC Crime & Safety Report, both created by DOS for U.S. citizens traveling abroad).

How this new Report will impact asylum seekers, we don’t yet know. At a minimum, people will need to supplement their applications with evidence to overcome the rosy picture painted by the DOS Report, and for those asylum seekers who are unable to obtain such evidence, the likelihood of a successful outcome is further reduced.

I’ve said this before, and I will say it again here: What bother’s me most about the Trump Administration’s efforts to block asylum seekers is not that they are making it more difficult to obtain protection–they were elected on a restrictionist platform and they are doing what they said they would do. What bother’s me most is the blatant dishonesty of this Administration, and now of the State Department. If you want to reject female asylum seekers, reject them honestly. Don’t pretend that they are economic migrants and that you are returning them to safe places. At least have the decency to tell them–and the American people–that you are returning them to countries where they face extreme danger and death.

Frankly, there’s nothing too surprising about the new DOS Report. President Trump has made his views on refugees and on women quite clear. But what’s so sad is that the Report represents further evidence that the Administration’s lies have infected yet another esteemed government institution. Not only is this Report bad for asylum seekers, it’s bad for the State Department, which is now complicit in the Administration’s mendacity. Indeed, I can’t help but think that the fate of these asylum seekers is inextricably tied to the fate of the DOS, and the new Report doesn’t bode well for either of them.

Special thanks to Attorney Joanna Gaughan for the idea for this piece. Ms. Gaughan works for the Farrell Law Group in Raleigh, NC. Her practice focuses largely on asylum cases, and she can be reached at joanna.m.gaughan@gmail.com.

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

The outright lies, distortions, intentional misuse of statistics, and knowingly false narratives from Trump, Sessions, Nielsen, Miller and the rest of the White Nationalist crowd is all part of the “de-humanization effort.”

Truth be told, the two previous Administrations returned refugees and others entitled to protection to countries where they were in danger. This Administration has ramped up the deadly, illegal, and inhumane program. De-humanization is just part of the effort to mask the full scope of their human rights violations. Not that Trump supporters care too much about human rights, Constitutional rights, or indeed anybody’s rights except their own (which are by no means safe from Trump if he turns on them, as he is wont to do — just ask Jeff “Gonzo Apocalyoto” Sessions or Steve Bannon). Selfish Government for selfish people.

But, the key message here is that the advocacy community needs to inform courts about the biases of the Country Reports and present viable alternatives!

PWS

06–03-18

 

HON. JEFFREY CHASE: EVERYONE IN THE HUMAN RIGHTS/WOMEN’S RIGHTS ADVOCACY COMMUNITY NEEDS TO UNITE AND TAKE AGGRESSIVE ACTION AGAINST JEFF SESSIONS’S PLAN TO PASS DEATH SENTENCE ON FEMALE REFUGEES FLEEING DOMESTIC VIOLENCE –Many Will Be Killed, Raped, Maimed, Disfigured, Or Sentenced To A “Life Worse Than Death” If Sessions Has His Way!

https://www.jeffreyschase.com/blog/2018/5/6/7r3izq486dxxtzlrsythpmr2kg35j3

Briefs Filed in Matter of A-B-

Briefs of the parties and amici have now been filed with the Attorney General in Matter of A-B-.  Once again, a group of former immigration judges and BIA members, which this time numbered 16 (including myself) filed an amicus brief (which can be viewed here: http://www.aila.org/infonet/amicus-brief-matter-of-a-b- ).*  The respondent’s brief was submitted by the outstanding legal team of Ben Winograd of IRAC; Karen Musalo, Blaine Bookey, and Eunice Lee of CGRS, and Charlotte attorney Andres Lopez.  DHS’s brief was submitted by Michael P. Davis of ICE, whose reasoned positions are to be commended.

The issue in the case below involved the actions of immigration judge V. Stuart Couch in failing to abide by the decision of the Board of Immigration Appeals, which reversed Couch’s denial of asylum in a particularly strong claim involving a victim of severe domestic violence.  The BIA reversed the judge’s decision, and remanded with instructions to grant asylum following the required updated security clearance by DHS. However, Couch took some nine months to schedule the case for a hearing. When at that hearing, DHS stated that the clearances had been completed, Judge Couch did not issue a new decision (as he was directed to do by the BIA).  Instead, he stated that he was recertifying the case to the BIA, something that he lacked the authority to do without first issuing a new decision.

The case sat for another seven months, during which time it is not clear whether the record actually made its way back to the BIA.  But before the Board could rule on the propriety of Judge Couch’s actions, the case was somehow plucked from wherever it had been by AG Jeff Sessions, who on his own transformed the case into a vehicle to answer a question that no one but himself seems to understand, namely, whether being the victim of private criminal activity constitutes a cognizable particular social group for asylum purposes.  (There is an interesting question of how Sessions even knew that this case existed.)

In response, the Department of Homeland Security appealed to reason.  It requested the AG to hold off until the BIA ruled on the propriety of Couch’s attempted recertification.  DHS also requested Sessions to provide further clarification of his question, and noted that “this question has already been answered, at least in part, by the Board and its prior precedent.”  Sessions denied both requests, adding that he is not bound by BIA precedent, nor is he required to allow briefing on an issue before him on certification. It seems as if Sessions might be saying that as he’s bestowing the privilege of allowing briefs, he doesn’t further need to let everyone know what it is they are being asked to brief.

Depending on how Sessions is choosing to interpret the question, his decision might impact not only domestic violence claims, but any asylum claim based on a particular social group involving private criminal activity (which could include claims based on sexual orientation or sexual identity; as well as victims of female genital cutting, human trafficking, gang violence, blood feuds and honor killings).  Or then again, maybe not. Because if Sessions is asking whether a particular social group delineated as “victims of private criminal activity” is cognizable, his answer wouldn’t impact the outcome of this case, as the respondent never claimed to be a member of such group. Nor would it matter to the outcome if Sessions is asking whether a group which includes the element of victimization by a criminal acting in a private capacity is cognizable, as no element of victimization is included in the respondent’s delineated group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.”  Nowhere in the wording of such group is there a mention of being the victim of private criminal activity, nor is the respondent claiming that she was targeted for abuse because of her being a victim of private criminal activity.

But could Sessions be questioning whether any particular social group merits asylum where its members fear persecutors who are not government officials?  If that’s his question, a decision in the negative would run counter to not only more than a half century of BIA precedent, but also to decisions of all eleven Federal circuit courts, and to international law, all of which universally agree that for asylum purposes, persecution may be by private actors that the government is unable or unwilling to control.

Does Sessions himself understand the question he is asking?  Let’s just assume that since this case involves a credible victim of severe domestic violence, and that her particular social group was found by the BIA to be substantially similar to the one it recognized as cognizable in its 2014 precedent decision in Matter of A-R-C-G-, that Sessions is considering invalidating that decision.

The purpose of courts and tribunals is to resolve disputes between the parties.  The issue that Sessions now wishes to address has been settled, and is not being contested by either party.  The Department of Homeland Security itself made this point to Sessions. Had this case been allowed to run its course and result in a grant of asylum, it is far from clear that such result would have been contested or appealed by DHS.  In its brief to Sessions, DHS states more than once that it “generally supports the legal framework set out by the Board in Matter of A-R-C-G-.”  DHS continued that the group in that case of “married women in Guatemala who are unable to leave their relationship” was not defined by the respondent’s being subject to domestic violence.  DHS specifically stated that like the BIA, it “understands ‘unable to leave a relationship’ to signify an inability to do so based on a potential range of ‘religious, cultural, or legal constraints…’”  DHS continued that neither the PSG in A-R-C-G- nor the group offered by A-B- herself violate the principle that such group “must exist independently of the persecution suffered and/or feared.”

In refusing DHS’s request for clarification, Sessions claimed that “several Federal Article III courts have recently questioned whether victims of private violence may qualify for asylum” based on their membership in a particular social group.  However, in responding to such statement in its subsequent brief, DHS noted that “none of the circuit court decision cited by the Immigration Judge questioned the underlying validity of A-R-C-G-.”  In response to Sessions’ statement that he is not bound by the BIA’s precedent decisions, DHS recognized this, but “avers that the Attorney General should not directly or indirectly abrogate A-R-C-G-,” but should “rather…emphasize the importance of case and society-specific analysis.”

There is thus agreement between the parties of the validity of the Board’s holding in A-R-C-G-.  In revisiting the issue, Sessions is not attempting to resolve a dispute, as no such dispute exists.

To me, the most shocking aspect of Sessions’ action is its timing.  Case law concerning human rights (including the law of asylum) and civil rights does not develop in a vacuum.  Much as courts have extended civil rights protections based on race, gender, and sexual orientation throughout the history of this country, the idea of what constitutes persecution and which of its victims are deserving of protection evolves along with the views of society.  Sessions is choosing, unprompted, to challenge whether victims of domestic violence are deserving of asylum just as our society has undertaken a powerful, long-overdue, and much needed correction in the form of the #metoo movement. Many hundreds of thousands of us (“us” of course referring to people regardless of gender, as women’s rights are human rights) have filled the streets of cities all over America (and the world) the past two Januarys in a powerful, emotional rebuke to sexual assault and all forms of sexism.  Powerful men who for years had engaged in all forms of sexual abuse and harassment are for the first time experiencing the consequences of their actions. And it is at this particular time that Sessions seeks to revoke protection to women who are domestic violence victims?

Briefs are good, but more is needed.  The wonderful Tahirih Justice Center collected 60,000 signatures on a petition which it delivered to Sessions in March calling on him to uphold asylum protection for survivors of domestic violence: https://www.tahirih.org/news/tahirih-delivers-petition-on-asylum-for-domestic-violence-survivors-to-the-attorney-general/.  More organizations need to follow Tahirih’s example.  In addition to the briefs submitted, there needs to be a true public outcry addressed to Sessions on this issue.  Asylum protection for victims of domestic violence is not just an immigration issue or a women’s issue. It is a human right, on which all of us should make ourselves heard.

 

*Heartfelt thanks to the law firm of Gibson Dunn (Megan Kiernan, Ronald Kirk, Chelsea Glover, Lalitha Madduri, and Amer Ahmed) for drafting the brief, and to former BIA member Lory D. Rosenberg for organizing and coordinating the effort.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

fullsizeoutput_40da.jpeg

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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

Jeff Sessions has declared “open season” on bona fide refugees as part of his White Nationalist “Turn American Back to The Bad Old Days” Campaign.

Perhaps attitudes and beliefs like Sessions’s are why there millions fewer women than men worldwide!  Recently, a group led by well-known refugee scholar and expert Professor Debbie Anker of Harvard Lw made a very compelling case that even “landmark” cases like Matter of Kasinga and Matter of A-R-C-G- are far too restrictive. Gender, in and of itself, is the REAL PSG.

Hopefully, in the end, Sessions’s attack on refugee law, scholarship, and human decency will result in a more appropriately generous reading of the PSG category. Sometimes, “restrictionist theories” are so facially absurd, contrived, and lacking in intellectual integrity that they defeat themselves and reinforce the opposite position!

PWS

05-07-18

VIEWS YOU CAN USE: SOPHIA GENOVESE SETS FORTH A BLUEPRINT FOR LEGAL RESISTANCE TO WHITE NATIONALIST XENOPHOBIA & SESSIONS’S ASSAULT ON HUMAN RIGHTS & THE RULE OF LAW FOR ASYLUM SEEKERS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/20/sessions-likely-to-end-asylum-eligibility-for-victims-of-domestic-violence-how-courts-can-resist.aspx?Redirected=true

Sophia writes at LexisNexis Immigration Communities:

“Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i]

International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.

In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.

The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.

. . . .

Despite the BIA’s findings, and decades of tireless efforts by advocates, Attorney General Sessions now refers the case to himself and has asked parties to submit briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). There may have been bad faith on the part of the Immigration Judge below who held up A-B-’s case on remand, then sent it back to the BIA eight months later by raising a “facially bogus legal issue,” only to have AG Sessions refer the case to himself and stripping the BIA of jurisdiction.

Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution.  The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.

One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.

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

Go on over to LexisNexis at the above link for Sophia’s much longer full article.

More and more individuals are publicly “outing” the clear bias, White Nationalism, lifelong xenophobia, and disingenuous misstatements of facts, manipulation of the process, and disrespect for the true rule of law and our Constitutional guarantees of Due Process for all, which should have disqualified Jeff “Gonzo Apocalypto” Sessions from ever becoming the Attorney General and assuming control over the US. Immigration Courts. But, as Sophia cogently points out, by winning cases in the Article III Courts, the “NDPA” can actually turn the tables on Sessions and his restrictionist cronies by putting important principles of immigration law and fairness beyond their biased grasp.

Harm to the most vulnerable among us is harm to all of us! Go New Due Process Army! Due Process Forever!

 

PWS

03-21-18

TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

https://www.cnn.com/2018/03/10/politics/sessions-immigration-appeals-decision/index.html

Sessions tests limits of immigration powers with asylum moves
Tal Kopan
By Tal Kopan, CNN
Updated 8:01 AM ET, Sat March 10, 2018

Washington (CNN)The US immigration courts are set up to give the attorney general substantial power to almost single-handedly direct how immigration law is interpreted in this country — and Jeff Sessions is embracing that authority.

Sessions quietly moved this week to adjust the way asylum cases are decided in the immigration courts, an effort that has the potential to test the limits of the attorney general’s power to dictate whether immigrants are allowed to enter and stay in the US and, immigration advocates fear, could make it much harder for would-be asylees to make their cases to stay here.
Sessions used a lesser-known authority this week to refer to himself two decisions from the Board of Immigration Appeals, the appellate level of the immigration courts. Both deal with asylum claims — the right of immigrants who are at the border or in the US to stay based on fear of persecution back home.

In one case, Sessions reached into the Board of Immigration Appeals archives and overturned a ruling from 2014 — a precedent-setting decision that all asylum cases are entitled to a hearing before their claims can be rejected. In the other, Sessions is asking for briefs on an unpublished opinion as to how much the threat of being the victim of a crime can qualify for asylum. The latter has groups puzzled and concerned, as the underlying case remains confidential, per the Justice Department, and thus the potential implications are harder to discern. Experts suspect the interest has to do with whether fear of gang violence — a major issue in Central America — can support asylum claims.
A Justice official would say only on the latter case that the department is considering the issue due to a “lack of clarity” in the court system on the subject. On the former, spokesman Devin O’Malley said the Board of Immigration Appeals’ 2014 holding “added unnecessary cases to the dockets of immigration judges who are working hard to reduce an already large immigration court backlog.”
Tightening asylum
Sessions referring the cases to himself follows other efforts during his tenure to influence the courts, the Justice Department says, in an effort to make them quicker and more efficient. In addition to expanding the number of Board of Immigration Appeals judges and hiring immigration judges at all levels at a rapid clip, the Justice Department has rolled out guidance and policies to try to move cases more quickly through the system, including possible performance measures that have the judges’ union concerned they could be evaluated on the number of closed cases.

“What is he up to? That would be speculation to say, but definitely there have been moves in the name of efficiency that, if not implemented correctly, could jeopardize due process,” said  Rená Cutlip-Mason, until last year a Justice Department immigration courts official and now a leader at the Tahirih Justice Center, a nonprofit that supports immigrant women and girls fleeing violence.
“I think it’s important that the courts balance efficiencies with due process, and any efforts that are made, I think, need to be made with that in mind,” she added.
The Board of Immigration Appeals decisions could allow Sessions to make it much harder to seek asylum in the US.
Asylum is a favorite target of immigration hardliners, who argue that because of the years-long backlog to hear cases, immigrants are coached to make asylum claims for what’s billed as a guaranteed free pass to stay in the country illegally.
Advocates, however, say the vast majority of asylum claims are legitimate and that trying to stack the decks against immigrants fleeing dangerous situations is immoral and contrary to international law. Making the process quicker, they argue, makes it harder for asylum seekers — who are often traumatized, unfamiliar with English and US law, and may not have advanced education — to secure legal representation to help make their cases. The immigration courts allow immigrants to have counsel but no legal assistance is provided by the government, unlike in criminal courts.
Reshaping the immigration courts
Beyond asylum, Sessions’ efforts could have far-reaching implications for the entire immigration system, and illustrate the unique nature of the immigration court system, which gives him near singular authority to interpret immigration laws.
Immigration cases are heard outside of the broader federal court system. The immigration courts operate as the trial- or district-level equivalent and the Board of Immigration Appeals serves as the appellate- or circuit court-level. Both are staffed with judges selected by the attorney general, who do not require any third-party confirmation.
How Trump changed the rules to arrest more non-criminal immigrants
How Trump changed the rules to arrest more non-criminal immigrants
In this system, the attorney general him or herself sits at the Supreme Court’s level, with even more authority than the high court to handpick decisions. The attorney general has the authority to refer any Board of Immigration Appeals decision to his or her office for review, and can single-handedly overturn decisions and set interpretations of immigration law that become precedent followed by the immigration courts.
The power is not absolute — immigrants can appeal their cases to the federal circuit courts, and at times those courts and, eventually, the Supreme Court will overrule immigration courts’ or Justice Department decisions. That’s especially true when cases deal with constitutional rights, said former Obama administration Justice Department immigration official Leon Fresco. Fresco added that the federal courts’ deference to the immigration courts’ interpretation of the law has decreased in the past 10 years, though that could change as more of the President’s chosen judges are added to the bench.
But Sessions could be on track to test the limits of his power, and the moves might set up further intense litigation on the subject.
“From what I can see, Sessions is really testing how far those powers really go,” said Cutlip-Mason. “The fact that the attorney general can have this much power is a very interesting way that the system’s been set up.”
Retired immigration Judge Paul Wickham Schmidt, who served for years in federal immigration agencies and the immigration courts, said that to say the immigration courts are full due process is “sort of a bait and switch.” He says despite the presentation of the courts’ decisions externally, the message to immigration judges internally is that they work for the attorney general.
“I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

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

The idea that the U.S. Immigration Courts can fairly adjudicate asylum cases and provide Due Process to migrants with Jeff Sessions in charge is a bad joke.

America needs an independent Article I Immigration Court.

Harm to the most vulnerable among us is harm to all of us.

PWS

03-11–17

ANA COMPOY @ QUARTZ — WHILE YOU WERE SLEEPING, JEFF SESSIONS WAS HARD AT WORK DISMANTLING DUE PROCESS IN THE AMERICAN JUSTICE SYSTEM — We’re Headed For a Monumental Train Wreck In The “REAL” Article III Courts As Sessions Tries To Force “Kangaroo Court” Work Product Down Their Throats (Again) — I’m Quoted In This Article

https://qz.com/1223294/jeff-sessions-is-quietly-remaking-the-us-immigration-system/

 

It’s been a busy week for Jeff Sessions. The US attorney general is deploying his broad powers to remake the US’s immigration system instead of waiting for Congress to pass legislation.
Late Tuesday, he filed a lawsuit against the state of California, for its policies limiting cooperation between state officers and federal immigration agents. “Federal law is the supreme law of the land,” he said in a speech in Sacramento on Wednesday.
Far more quietly, on Monday, Sessions took the unusual step of digging up an old legal decision that affirmed asylum-seekers’ right to a make their case in court—and cancelled it. That little-noticed move has the potential of doing more to further Trump’s efforts to deport undocumented immigrants than his attack on so-called sanctuary jurisdictions like California.

Sessions’s choice to revisit the four-year-old case on Monday was not explained in his three-paragraph announcement. A Justice Department spokesperson tells Quartz that the decision which Session overruled had “added unnecessary cases to the dockets of immigration judges, who are working hard to reduce an already large immigration court backlog.”
The mountain of pending immigration cases, which now stands at nearly 670,000, has emerged as a major bottleneck for Trump’s administration. Regardless of their legal status, many immigrants are entitled to a day in court under the law. With US immigration courts chronically understaffed, that can take years. Many applications will likely be processed more quickly—and denied—if asylum-seekers aren’t given the chance to argue their case.
The Matter of E-F-H-L

As head of the Department of Justice, Sessions oversees the country’s immigration courts, and the Board of Immigration Appeals (BIA,) where parties can contest immigration judge decisions. Unlike federal or state courts, the immigration court system is not part of an independent judicial branch, but embedded within a president’s administration.

Critics—including many immigration judges—say that setup makes the court system vulnerable to political interference, and there’s evidence that both Democratic and Republican administrations have done that to further their goals.
Among the attorney general’s powers is the ability to single-handedly overwrite any decisions by the BIA, as Sessions did on Monday. The decision he is zeroing in on is related to a case dubbed “Matter of E-F-H-L,” after the initials of the person who brought it to the appellate body. E-F-H-L, a Honduran immigrant, requested asylum. He appeared before an immigration court, but didn’t get a chance to testify because the judge determined E-F-H-L had no chance of getting asylum based on his application.
E-F-H-L appealed the decision to the BIA, which found that the judge had dismissed the case prematurely. An asylum applicant, it said in its decision, “is entitled to a hearing on the merits of the applications, including an opportunity to provide oral testimony and other evidence.” By striking it, Sessions is signaling that giving asylum seekers that chance is no longer required.
Paul Schmidt, a former immigration judge, says it’s important to hear out asylum applicants even if their case doesn’t look very solid on paper. Many of them—around 20% whose cases were decided in fiscal 2017—don’t have a lawyer, and are not familiar with the kind of information that should be included in the application. Others don’t even speak English. “You can’t always tell how the case is coming out just by looking at the application,” he said.
But another retired immigration judge, Andrew Arthur, welcomed the apparent change. “Given the fact that an asylum merits case can take anywhere between two hours and several days, this authority will allow those judges to streamline their dockets and complete more cases in a timely manner,” he wrote in a post for the Center for Immigration Studies, a think tank that advocates for reducing undocumented immigration.
Sessions’s decision also appears to target the asylum system in particular, which he’s said is being gamed by people with false claims. The precedent it sets is bound to make it more difficult for asylum seekers to make their case.
Administrative closure

Sessions’s sudden interest in E-F-H-L also appears to be related to a tool immigration judges often use referred to as “administrative closure.” That’s when a judge decides to put a case on the back burner instead of immediately deciding whether a person can stay in the US or should be deported.
There are several reasons why judges might delay a case’s decision. Sometimes rescheduling helps them organize their crowded docket; other times an immigrant may be in the middle of a visa application with US Citizen and Immigration Services, in which case it makes sense to wait until that process is completed, says Lenni Benson, a professor at New York Law School.
That appears to have been E-F-H-L’s case. In its decision, the BIA ordered the judge to give E-F-H-L a proper hearing, but by that time, he had applied for a family-based visa and didn’t want to follow through on his asylum claim. So the judge put the case in administrative closure. In his Monday decision, Sessions argued that since the immigrant is no longer applying for asylum, his case should be put back on the docket and resolved.
It seems odd that the head of the Justice Department would make time in his busy schedule to single out an obscure four-year-old case. But Benson says it fits within a broader effort to remove judges’ ability to put a case on hold.
Earlier this year, Sessions used his authority to pluck another case, this one involving a Guatemalan minor, to question the use of administrative closure. He is currently asking for input before taking any action, however. (Several groups, including the Safe Passage Project, a non-profit where Benson runs a program to train pro bono lawyers to represent immigrant youth, have filed a brief advocating for Sessions to keep the practice.)
If he doesn’t, the group of affected immigrants would be much broader than just asylum seekers. The use of administrative closure expanded during the Obama presidency. Because that administration’s focus was on criminals, the cases of many undocumented immigrants with a clean record became lower priorities. Administrative closure essentially took those immigrants off the list of deportation targets, even if their legal status remained unchanged.
The Trump administration, however, has made it clear it’s going after everyone who is in the country illegally. With efforts to change immigration law stalled in Congress, Sessions appears to be doing everything he can administratively to carry out Donald Trump’s vision.

HomeOur PicksPopular

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

As Judge Arthur acknowledges, a “real” Due Process asylum merits hearing takes from two hours to two days — a big deal. So, his solution is to eliminate the hearing and thereby the respondent’s only chance to fully present her or his case.

Even if the respondent loses before the Immigration Judge, he or she is entitled to an appeal to the BIA and review in the Court of Appeals. Sometimes the BIA and more often the Circuit Courts disagree with the legal standards applied by the Immigration Judge. How does a respondent make a showing of what evidence supports his or her claim if not allowed to testify on that claim?

Haste makes waste. During the Ashcroft regime, there DOJ also attempted to short-circuit Due Process by  “streamlining” cases, primarily at the BIA level. The result, as I have noted before, was a tremendous mess in the Circuit Courts, as court after court found that the records sent to them for review were rife with legal errors, incomplete, inadequate, or all three.

The result was tons of remands that essentially tied up large portions of the Federal Court System as well as the DOJ on cases that were “Not Quite Ready For Prime Time.” However, many individuals who did not have the resources to appeal their cases all the way to the Circuit Courts were illegally removed from the US without receiving the fair hearings guaranteed by statute or the Due Process guaranteed by our Constitution.

Sessions, with the encouragement of folks like Judge Arthur, seems to be determined to repeat this grotesque abuse of American justice. However, this time there is a “New Due Process Army” out there with some of the top legal minds in the country prepared to fight to stop Sessions and his cohorts from violating the Constitution, our statutes, our values, and the rights of the most vulnerable among us.

Harm to one is harm to all!

PWS

05-08-18

SESSIONS APPEARS TO BE MOUNTING ALL-OUT ATTACK ON DUE PROCESS AND THE RIGHTS OF VULNERABLE ASYLUM SEEKERS IN “CAPTIVE” U.S. IMMIGRATION COURTS — “Out Of The Blue” Certification Of Matter Of A-B- Could Turn Deadly For Those At Risk!

3918

Cite as 27 I&N Dec. 227 (A.G. 2018) Interim Decision #3918

Matter of A-B-, Respondent

Decided by Attorney General March 7, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:

Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 6, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 13, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before April 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

227

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

Something pretty strange is going on here! The BIA has never, to my knowledge, held that “being a victim of private criminal activity constitutes a cognizable ‘particular social group.'” Quite to the contrary, the BIA has always found that “victims of crime” are not a PSG.

Moreover, “Matter of A-B-” is not a BIA precedent. In fact, it’s impossible to tell from the cryptic certification what facts or context the amici should address.

Stay tuned. But, given Sessions’s record of hostility and outright misrepresentations concerning asylum seekers, we could be heading for a monumental, years long battle in the Article III Federal Courts as to whether the U.S. will continue to honor our Constitutional, statutory, and international obligations to protect “refugees” applying for asylum.

PWS

03-07-18