ARLINGTON IMMIGRATION COURT:ANOTHER WIN FOR THE GOOD GUYS! – GW CLINIC HELPS EL SALVADORAN WOMAN & CHILDREN GET ASYLUM!

Friends,

Please join me in congratulating Immigration Clinic student-attorney Julia Navarro, and her client, F-R, from El Salvador.  This afternoon, Immigration Judge Emmett D. Soper granted F-R’s asylum application.  The ICE trial attorney waived appeal so the grant is final.  Granted asylum along with F-R were her twelve and nine year-young sons, who live with her, and her husband, who remains in El Salvador.

 F-R testified that the Mara 18 gang tried to recruit her then ten-year young son, but that he refused.  As a result, he was beaten, resulting in visible injuries.  However, he refused to tell F-R who beat him, and why.  Finally, after repeated beatings, he told F-R.  She confronted the gang members and asked them to leave her son alone.  In response, they burned her with lit cigarettes on her chest, stomach, and arms.  In addition, they demanded that she pay them $5,000.  And they continued to beat her son.  F-R went to the police twice, but nothing was done.  Finally, after further beatings of her son and renewed demands for the $5,000, F-R and her husband decided that she and her two sons should come to the USA.  After she left El Salvador, the gang members poisoned two of her dogs, whom, she testified, she considered part of her family.  At the conclusion of her direct examination, Julia asked F-R if she would confront the gang members again, and she said yes, because “my children are my life, and I would give my life for theirs.”

 Congratulations also to Sarah DeLong, Dalia Varela, Jengeih Tamba, and Jonathan Bialosky, who previously worked on this case.

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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congrats to all involved!
Once more proving my point that with great representation, time to prepare, and a fair Immigration Court, many, perhaps the majority, of the so-called “Northern Triangle Gang Cases” are highly grantable!
This definitely calls into question the Administration’s use of unnecessary detention, unwarranted criminal prosecutions, expedited removal, denial of access to counsel, detention courts, and “removal quotas” to “discourage” valid claims for protection. The Administration’s policies are an overt attack on Due Process and the Rule of Law! Harm to the most vulnerable among us is harm to all of us!
Three cheers for the “New Due Process Army!”
PWS
02-23-18

MEET THE GOOD GUYS: NOVA SUPERSTAR IMMIGRATION ATTORNEY AVA BENACH HELPS “DREAMER TYPES” & THEY HELP AMERICA – THIS IS THE WAY THE SYSTEM CAN WORK WHEN YOU GET BEYOND THE WHITE NATIONALIST XENOPHOBIA OF TRUMP, SESSIONS, & MILLER & WHEN GREAT LAWYERS GET INVOLVED!

https://www.washingtonpost.com/local/she-was-almost-deported-as-a-teen-now-she-helps-frightened-versions-of-herself/2018/02/15/b39969a8-1245-11e8-9065-e55346f6de81_story.html

Petula Dvorak writes in the Washington Post:

“She was almost deported as a teen. Now she helps frightened versions of herself.


Liana Montecinos is a senior paralegal at Benach Collopy in Washington. She was 17 and about to be deported when lawyer Ava Benach helped her win asylum. (Jahi Chikwendiu/The Washington Post)

Columnist February 15 at 3:39 PM

On many days in the shiny, sleek law office — in her sharp suit and sweeping view of Washington — she revisits all the horrors most people would want to forget:

The drunk men bursting into her tiny, adobe home at night, terrorizing the 15 children who lived there.

The walk across three countries, fearing for her life the entire way.

The months of eating nothing but beans and rice.

These are the same stories Liana Montecinos hears just about every time the 29-year-old paralegal sits down with a client.

Ava Benach, from left, Satsita Muradova and Liana Montecinos chat at their law office. (Jahi Chikwendiu/The Washington Post)

She doesn’t have to go there. She’s an American citizen and a third-year law student with a great future in front of her. But instead of going into something lucrative — corporate law, for example — she’s sticking with the law firm that helped her get political asylum.

“Being an immigrant and serving immigrants, it’s a very special connection,” Montecinos said.

And by doing that, she spends her days with frightened versions of herself.

I wanted to tell Montecinos’s story as Congress grapples with the fate of 1.8 million “dreamers,” the undocumented immigrants who were brought to this country as children. They face deportation under President Trump unless Congress can find a way to reinstate the protection they were given by President Barack Obama.

Montecinos was brought across the border by a relative in 1999, when she was 11 years old, after walking — yes, actually walking — from Honduras, across Guatemala, then across Mexico, crossing the Rio Grande into the United States.

She joined her mother in Northern Virginia — they had been separated since she was an infant and she had been raised by her grandmother — and her life was transformed.

She played volleyball and basketball in her Falls Church high school. She was a cheerleader and soccer player. She took Advanced Placement classes.

But no matter how well she was doing in school and no matter how faint her accent became, she knew it could all fall apart any second.

And it nearly did when she was 17 and applied for legal status. Instead, the government began removal proceedings. She was going to be deported.

But it didn’t stop her from graduating from high school and enrolling at George Mason University, where she received a scholarship to cover the triple-tuition she had to pay as an undocumented student.

The scholarship’s donor — Helen Ackerman — introduced Montecinos to D.C. immigration attorney Ava Benach, who took on her complex case. What followed was a 10-year struggle.

“I met Liana when she was 17 years old,” Benach said. “And I knew she was special. She was out there, trying to figure out her own immigration status. I felt a very parental desire to help her.”

So they took on the case together, with Montecinos never giving up.

“I’d be doing an all-nighter, knowing I had a hearing the next day and the judge could send me away and it would all be for nothing,” she said.

But she kept studying, striving and working. You know how folks are always saying “Why don’t they just get legal?” It’s not that easy.

It took 10 years of hearings and arguments to convince a judge that she faced threats and violence in Honduras, in that tiny, adobe house, and that her hard work in school, model citizenship and potential were enough to grant her a place in American society.

Asylum is granted only to someone who faces persecution in their home country. And that persecution has to be for one of five reasons: your race, religion, nationality, membership in a particular social group, or your political opinion.

“It has to fit in one of five boxes,” Benach said. And her life’s work is helping her frightened clients qualify.

Montecinos was granted asylum and citizenship on June 29, 2016.

“For many, becoming a U.S. citizen is the last part of the process,” Montecinos wrote on her Facebook page that day. “For others, like myself, it is the beginning to end 16 plus years of uncertainty and of fear of a forceful return to imminent harm.”

She called herself “extremely blessed and thankful for such a privilege, which is denied to many,” she said. “This path, however, was not easy. It was not short. It was not cheap.”

She is in her third year of law school at the University of the District of Columbia, where she received a Student Humanitarian and Civic Engagement award on Thursday.

In her spare time, you see, she runs a nonprofit group she founded, United for Social Justice, which helps low-income, first-generation Americans get access to higher education. Oh, and she coaches and plays on a bunch of soccer teams.

When she meets with the undocumented children who are like her, the ones she is fighting for, it reminds her of her struggle.

Though her own story is horrible — think of being 11 and scared, hiding your face with blankets as you cross strange villages where people are yelling “pollos mojados” (wet chickens) at you, not knowing where you’re going — her clients recount even more heart-stopping stories.

She hears from children who were kidnapped, who rode for days on top of speeding trains, afraid to fall asleep because they’d fall off, from a little girl who was gang-raped in front of her father.”

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Ava has a “Major League” legal mind to go with a “heart of gold!” She and her colleagues from her firm appeared on many occasions before me at the Arlington Immigration Court.

This article aptly illustrates one of the points I often make.  Asylum law has intentionally been “jacked” against Central Americans by a non-independent BIA working under pressure from politicos to limit protections to large groups. Nevertheless, with a good lawyer (e.g., one who isn’t afraid to argue the BIA’s — often otherwise ignored — favorable precedents back to them and to take wrong BIA denials to the Court of Appeals if necessary), resources to build and document a case, and persistence, most of the “Dreamers” probably could win some type of relief in Immigration Court if not at the Asylum Office or elsewhere at USCIS.

But, what rational reason could there be for forcing folks like Liana Montecinos who are already here, part of our society, and just want to become taxpaying citizens and REALLY “Make America Great” (not to be confused with the disingenuous racist slogan of Trump and his White Nationalist “base”) go through such a laborious process? And what possible rationale could there be for wasting the time of an already overburdened Immigration Court system with cases of individuals who clearly should be welcomed and accepted into American society without being placed in “Removal Proceedings?” Also, what would be the rationale for trying to artificially “speed up” complex cases like Liana’s and trying to make life difficult for talented lawyers like Ava?

The answer is clear: there is NO rationale for the “Gonzo” Immigration enforcement and “designed chaos and attack on Due Process in Immigration Court” that Trump, Miller, Sessions, Nielsen, Tom Homan and their ilk are trying to ram down our throats. Sessions is the problem for justice in our Immigration Courts; lawyers like Ava are a key part of the solution! Clearly, the U.S. Immigration Courts are too important to our system of justice to be left in the clutches of a biased, “enforcement only,” White Nationalist, xenophobic opponent of individual due process like Jeff Sessions! American needs an independent Article I U.S. Immigration Court! Harm to the least and most vulnerable among us is harm to all!

The good news is that folks like Ava and her fellow “Generals” of the “New Due Process Army” are out there to fight Trump, Sessions & Company and their White Nationalist, anti-American actions every step of the way and to vindicate the Constitutional and legal rights of great American migrants like Liliana and millions of others similarly situated. They are “American’s future!” Trump, Sessions, Miller, et al., are the ugly past of America that all decent Americans should be committed to “putting in the rear-view mirror” where the “Trumpsters” live and belong! And, it won’t be long before Liliana becomes an attorney and a “full-fledged member” of the “New Due Process Army!”

Go Ava! Go Liliana! Due Process Forever! 

PWS

02-16-18

 

MICHELLE BRANE @ WOMEN’S REFUGEE COMMISSION — “Why I March!”

“Dear Paul,

Today, my daughter Marisa and I joined thousands of women, men, and children in Washington, DC and other cities around the country to march for equality and for justice.

First and foremost on my mind while I marched with my daughter were the migrant and refugee women, children, and families for whom I advocate every day. With each step, I thought about the brave mothers who escape danger in their home countries because, like all mothers, they want a bright future for their children. Expecting to find safety at our border, these women and children are instead met by the Trump administration’s policies of ripping families apart.

I decided to march today in honor of the women and children who reach for safety but are instead betrayed.

The Women’s Refugee Commission will march forward with our important work supporting women and children seeking safety at our border. We will continue to utilize the court systems, inform the press and public, and hold the Trump administration accountable until asylum seekers have the protection and services they need to be safe, healthy, and to rebuild their lives. But there is strength in numbers.

In the spirit of the Women’s March, and the women for whom we march, please join us by donating today.

We can accomplish so much more together than we can alone.

In solidarity,

Michelle Brané
Director, Migrant Rights and Justice Program

DONATE

© 2017 Women’s Refugee Commission. All rights reserved.
The Women’s Refugee Commission is a 501(c)(3) organization.
Donations are deductible to the full extent allowable under IRS regulations.
15 West 37th Street, 9th Floor, New York, NY 10018 • Tel. (212) 551-3115”

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Like me, my friend Michelle began her career as an Attorney Advisor at the BIA. She is also a distinguished alum of Georgetown Law where I am an Adjunct Professor.

The Women’s Refugee Commission does some fantastic work in behalf of vulnerable women and children who arrive at our border seeking refuge and justice, only to be detained and railroaded back to life-threatening conditions by the anti-refugee, anti-Due-Process, White Nationalist regime of Trump, Sessions, Miller, Nielsen, and their complicit minions.

Michelle was named one of the “21 Leaders for the 21st Century” by Women’s e-News.

Imagine what a great country this could be if our Government and our justice system were led by smart, courageous, principled, values-driven, humane leaders like Michelle and her colleagues, rather than by a cabal of morally bankrupt White Nationalist men and their sycophantic subordinates.

PWS

01-22-18

 

JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!

https://www.themarshallproject.org/2018/01/19/lost-in-court

Julia writes for The Marshall Project:

“. . . .

And so in this gateway city on the Rio Grande [Laredo], inside a building rimmed with barbed wire, past security guards and locked doors, immigration judges on short details started hearing cases in a cramped courtroom that was hastily arranged in March.

But seven months later, the case of Oscar Arnulfo Ramírez, an immigrant from El Salvador, was not going quickly. He was sitting in detention, waiting for a hearing on his asylum claim. And waiting some more.

The court files, his lawyer discovered, showed that Ramírez’s case had been completed and closed two months earlier. Since the case was closed, the court clerk couldn’t schedule a new hearing to get it moving again. In fact, the clerk didn’t even have a record that he was still detained.

“It’s as if he’s non-existent,” his lawyer,, said. “He’s still in a detention center. He’s still costing the government and the American people tax dollars. But there’s no proceeding going on. He’s just sitting there doing completely nothing.”

Ramírez’s case was one of many signs of disarray in the improvised court in Laredo, which emerged during a weeklong visit in late October by a reporter from The Marshall Project and a radio producer from This American Life. Instead of the efficiency the Trump administration sought, the proceedings were often chaotic. Hearing schedules were erratic, case files went missing. Judges were exasperated by confusion and delays. Like Ramírez, detainees were lost in the system for months on end.


For a view of the border crossing in Laredo and the grinding process migrants begin there, check out Kirsten Luce’s photosfrom the gateway on the Rio Grande.


With the intense pressure on the court to finish cases, immigrants who had run from frightening threats in their home countries were deported without having a chance to tell the stories that might have persuaded a judge to let them stay.

. . . .

For Paola Tostado, the lawyer, Ramírez was not the first client to fall through the cracks in Laredo. Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.

Another Salvadoran asylum-seeker she represented, whose case was similarly mislaid, had gone for four months with no hearing and no prospect of having one. Eventually he despaired. When ICE officers presented him with a document agreeing to deportation, without consulting Tostado he had signed it.

“I’ve had situations where we come to an individual client who has been detained over six months and the file is missing,” she said. “It’s not in San Antonio. It’s not in Laredo. So where is it? Is it on the highway?”

In her attempts to free Ramírez, Tostado consulted with the court clerk in San Antonio, with the ICE prosecutors and officers detaining him, but no one could say how to get the case started again.

Then, one day after reporters sat in the courtroom and spoke with Tostado about the case, ICE released him to pursue his case in another court, without explanation.

But by December Tostado had two other asylum-seekers who had been stalled in the system for more than seven months. She finally got the court to schedule hearings for them in the last days of the year.

“I think the bottom line is, there’s no organization in this Laredo court,” Tostado said. “It’s complete chaos and at the end of the day it’s not fair. Because you have clients who say, I just want to go to court. If it’s a no, it’s a no. If it’s a yes, it’s a yes.”

Unlike criminal court, in immigration court people have no right to a lawyer paid by the government. But there was no reliable channel in Laredo for immigrants confined behind walls to connect with low-cost lawyers. Most lawyers worked near the regular courts in the region, at least two hours’ drive away.

Sandra Berrios, another Salvadoran seeking asylum, learned the difference a lawyer could make. She found one only by the sheerest luck. After five months in detention, she was days away from deportation when she was cleaning a hallway in the center, doing a job she had taken to keep busy. A lawyer walked by. Berrios blurted a plea for help.

The lawyer was from a corporate law firm, Jones Day, which happened to be offering free services. Two of its lawyers, Christopher Maynard and Adria Villar, took on her case. They learned that Berrios had been a victim of vicious domestic abuse. A Salvadoran boyfriend who had brought her to the United States in 2009 had turned on her a few years later when he wanted to date other women.

Once he had punched her in the face in a Walmart parking lot, prompting bystanders to call the police. He had choked her, burned her legs with cigarettes, broken her fingers and cut her hands with knives. Berrios had scars to show the judge. She had a phone video she had made when the boyfriend was attacking her and records of calls to the Laredo police.

The lawyers also learned that the boyfriend had returned to El Salvador to avoid arrest, threatening to kill Berrios if he ever saw her there.

She had started a new relationship in Texas with an American citizen who wanted to marry her. But she’d been arrested by the Border Patrol at a highway checkpoint when the two of them were driving back to Laredo from an outing at a Gulf Coast beach.

After Berrios been detained for nine months, at a hearing in July with Maynard arguing her case, a judge canceled her deportation and let her stay. In a later interview, Berrios gave equal parts credit to God and the lawyers. “I would be in El Salvador by this time, already dead,” she said. “The judges before that just wanted to deport me.”

. . . .

We have heard frustration across the board,” said Ashley Tabaddor, a judge from Los Angeles who is the association [NAIJ] president. She and other union officials clarified that their statements did not represent the views of the Justice Department. “We’ve definitely heard from our members,” she said, “where they’ve had to reset hundreds of cases from their home docket to go to detention facilities where the docket was haphazardly scheduled, where the case might not have been ready, where the file has not reached the facility yet.”

Another association official, Lawrence Burman, a judge who normally sits in Arlington, Va., volunteered for a stint in a detention center in the rural Louisiana town of Jena, 220 miles northwest of New Orleans. Four judges were sent, Burman said, but there was only enough work for two.

“So I had a lot of free time, which was pretty useless in Jena, Louisiana,” Burman said. “All of us in that situation felt very bad that we have cases back home that need to be done. But in Jena I didn’t have any of my files.” Once he had studied the cases before him in Jena, Burman said, he was left to “read the newspaper or my email.”

The impact on Burman’s case docket back in Arlington was severe. Dozens of cases he was due to hear during the weeks he was away had to be rescheduled, including some that had been winding through the court and were ready for a final decision. But with the enormous backlog in Arlington, Burman had no openings on his calendar before November 2020.

Immigrants who had already waited years to know whether they could stay in the country now would wait three years more. Such disruptions were reported in other courts, including some of the nation’s largest in Chicago, Miami and Los Angeles.

“Many judges came back feeling that their time was not wisely used,” Judge Tabaddor, the association president, said, “and it was to the detriment of their own docket.”

Justice Department officials say they are pleased with the results of the surge. A department spokesman, Devin O’Malley, did not comment for this story but pointed to congressional testimony by James McHenry, the director of the Executive Office for Immigration Review. “Viewed holistically, the immigration judge mobilization has been a success,” he said, arguing it had a “positive net effect on nationwide caseloads.”

Justice Department officials calculated that judges on border details completed 2700 more cases than they would have if they had remained in home courts. Officials acknowledge that the nationwide caseload continued to rise during last year, reaching 657,000 cases by December. But they noted that the rate of growth had slowed, to .39 percent monthly increase at the end of the year from 3.39 percent monthly when Trump took office.

Judge Tabaddor, the association president, said the comparison was misleading: cases of immigrants in detention, like the ones the surge judges heard, always take priority and go faster than cases of people out on release, she said. Meanwhile, according to records obtained by the National Immigrant Justice Center, as many as 22,000 hearings in judges’ home courts had to be rescheduled in the first three months of the surge alone, compounding backlogs.

. . . .”

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Read Julia’s complete article at the above link. Always enjoy getting quotes from my former Arlington colleague Judge Lawrence O. (“The Burmanator”) Burman. He tends to “tell it like it is” in the fine and time-honored Arlington tradition of my now retired Arlington colleague Judge Wayne R. Iskra. And, Judge Iskra didn’t even have the “cover” of being an officer of the NAIJ. Certainly beats the “pabulum” served up by the PIO at the “Sessionized” EOIR!

Also, kudos to one of my “former firms” Jones Day, its National Managing Partner Steve Brogan, and the Global Pro Bono Counsel Laura Tuell for opening the Laredo Office exclusively for pro bono immigration representation, As firms like jones Day take the “immigration litigation field,” and give asylum applicants the “A+ representation” they need and deserve, I predict that it’s going to become harder for the Article III U.S. Courts to ignore the legal shortcomings of the Immigration Courts under Sessions.

A brief aside. My friend Laura Tuell was  a “Guest Professor” during a session of my Immigration Law & Policy class at Georgetown Law last June. On the final exam, one of my students wrote that Laura had inspired him or her to want a career embodying values like hers! Wow! Talk about making a difference on many levels!And talk about the difference in representing real values as opposed to the legal obfuscation and use of the legal system to inflict wanton cruelty represented by Sessions and his restrictionist ilk.

We also should recognize the amazing dedication and efforts of pro bono and “low bono” lawyers like Paola Tostado, mentioned in Julia’s report. “Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.” What do you think that does to her law practice? As I’ve said before, folks like Paola Tostado, Christopher Maynard, Adria Villar, and Laura Tuell are the “real heroes” of Due Process in the Immigraton Court system. 

Compare the real stories of desperate, bona fide asylum seekers and their hard-working dedicated lawyers being “stiffed” and mistreated in the Immigration Court with Sessions’s recent false narrative to EOIR about an asylum system rife with fraud promoted by “dirty attorneys.” Sessions’s obvious biases against migrants, both documented and undocumented, and particularly against Latino asylum seekers on the Southern Border, make him glaringly unqualified to be either our Attorney General or in charge of our U.S. Immigration Court system.

No amount of “creative book-cooking” by EOIR and the DOJ can disguise the human and due process disaster unfolding here. This is exactly what I mean when I refer to “”Aimless Docket Reshuffling” (“ADR”), and it’s continuing to increase the Immigration Court backlogs (now at a stunning 660,000) notwithstanding that there are now more Immigration Judges on duty than there were at the end of the last Administration.

I’ll admit upfront to not being very good at statistics and to being skeptical about what they show us. But, let’s leave the “Wonderful World of EOIR” for a minute and go on over to TRAC for a “reality check” on how “Trumpism” is really working in the Immigration Courts. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

On September 30, 2016, near the end of the Obama Administration, the Immigration Court backlog stood at a whopping 516,000! Not good!

But, now let go to Nov. 30, 2017, a period of 14 months later, 10 of these full months under the policies of the Trump Administration. The backlog has mushroomed to a stunning 659,000 cases — a gain of 153,000 in less than two years! And, let’s not forget, that’s with more Immigration Judges on board!

By contrast, during the last two full years of the Obama Administration — September 30, 2014 to September 30, 2016 —  the backlog rose from 408,000 to 516,000. Nothing to write home about — 108,000 — but not nearly as bad as the “Trump era” has been to date!

Those who know me, know that I’m no “fan” of the Obama Administration’s stewardship over the U.S. Immigration Courts. Wrongful and highly politicized “prioritization” of recently arrived children, women, and families from the Northern Triangle resulted in “primo ADR” that sent the system into a tailspin that has only gotten worse. And, the glacial two-year cycle for the hiring of new Immigration Judges was totally inexcusable.

But, the incompetence and disdain for true Due Process by the Trump Administration under Sessions is at a whole new level. It’s clearly “Amateur Night at the Bijou” in what is perhaps the nation’s largest Federal Court system. And, disturbingly, nobody except a few of us “Immigration Court Groupies” seems to care.

So, it looks like we’re going to have to stand by and watch while Sessions “implodes” or “explodes” the system. Then, folks might take notice. Because the collapse of the U.S. Immigration Courts is going to take a big chunk of the Article III Federal Judiciary with it.

Why? Because approximately 80% of the administrative review petitions in the U.S. Courts of Appeals are generated by the BIA. That’s over 10% of the total caseload. And, in Circuits like the 9th Circuit, it’s a much higher percentage.

The U.S. Immigration Judges will continue to be treated like “assembly line workers” and due process will be further short-shrifted in the “pedal faster” atmosphere intentionally created by Sessions and McHenry.  The BIA, in turn, will be pressured to further “rubber stamp” the results as long as they are removal orders. The U.S. Courts of Appeals, and in some cases the U.S. District Courts, are going to be left to clean up the mess created by Sessions & co.

We need an independent Article I U.S. Immigration Court with competent, unbiased judicial administration focused on insuring individuals’ Due Process now! We’re ignoring the obvious at our country’s peril!

PWS

01-20-18

 

 

DEPORTATION TO DEATH — HOW AMERICA FAILS TO LIVE UP TO ITS HUMANITARIAN OBLIGATIONS!

https://www.washingtonpost.com/news/theworldpost/wp/2018/01/15/lgbt-el-salvador/

Josefina Salomon reports from Mexico fro the Washington Post:

“MEXICO CITY — Cristel woke up on the freezing floor of a tiny room in a detention center in San Diego. She was alone, dirty, hungry and exhausted. It was April. Eight days earlier, she had been arrested on the American side of the border crossing at Tijuana, where she planned to claim asylum. She had been in solitary confinement since then. The Immigration and Customs Enforcement (ICE) officers had given her no reason for her detention.

Five years on the run had left her drained. From the floor of that San Diego cell, it seemed like she was out of options. She could not bear the thought of being forced by ICE to return to El Salvador. That would be a death sentence.

Death threats from violent gangs had chased Cristel from her native El Salvador, through Guatemala and Mexico, up to the U.S. border. They kept her awake at night, echoing in the back of her head. In El Salvador and on her journey north, she had been bullied, threatened, robbed, beaten and raped. At one point, she had turned to sex work. She had been kidnapped and abused. She had escaped, but she still didn’t feel safe.

Cristel is not her real name. She is 25 and grew up in San Salvador. As a transgender woman, she has faced discrimination and violence nearly her entire life. My colleagues and I met Cristel half a dozen times over the last 18 months, first in San Salvador, and later at different points along her journey, as she moved toward what she hoped was salvation in the U.S.

Over time, Cristel lost weight and dark circles appeared under her eyes as fear, exhaustion and frustration took hold. Sometimes while we were talking, there would be seemingly unstoppable bursts of tears. Weeks might go by before we heard from her. Had she been hurt, or worse? The question, “What is going to happen to me?”, which she asked at every one of our meetings, became more and more urgent.\

. . . .

Starting in the 1990s, the U.S. was one of the first countries to begin admitting asylum seekers and refugees who were persecuted on the basis of their sexual orientation. While the Trump administration has not sought to change U.S. asylum law, it has made it clear that it aims to decrease the overall number of refugees admitted into the country and to raise the threshold for asylum seekers’ “credible fear” of persecution as a basis for their asylum.

According to figures from the U.S. Department of Justice, the number of asylum claims by people from El Salvador has been increasing dramatically in the past few years. There were nearly 18,000 claims in 2016 alone. While the number of people who have secured asylum in the U.S. increased in that period, so did the number of claims that were denied, abandoned or withdrawn. Many prospective asylum seekers and analysts have said this is because of the arduous process and the harsh detention conditions asylum seekers are forced to endure. The most vulnerable, like Cristel, often have few options but return to the danger they were desperately trying to escape in the first place.

In San Diego, after first being confined to solitary, Cristel was transferred to a cell that she shared with eight men. She was kept there for a month and a half. At her hearing, when it eventually came, she was appointed a pro bono lawyer, but her claim for asylum was denied. She was transferred to another detention center in Arizona, where she was handcuffed, put on a plane and sent back to a nightmare.

. . . .

She had gone back to live at her mother’s house, but the gang found her anyway. The extortion had resumed. Every time she is late with her payments, even by a day or two, gang members beat her. “I’m exhausted of being forced to pay to live. I want to leave but there’s nowhere to go.”

Sobbing, she said, “They are going to kill me.”

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Read the complete story at the link.

This is what “Trumpism” and “GOP restrictionism” are really about — turning our backs on those in the most need of protection.

One of the most disturbing things about this story is that, as noted by Solomon, the U.S. actually has been fairly routinely granting gender-based cases like this since at least the mid-1990s. See, e.g., Matter of Tobaso-Alfonso,20 I&N Dec. 819 (BIA 1990). In many U.S. Immigration Courts cases like this would routinely be granted, often with the DHS’s concurrence.

So, “Cristel” was unlucky.  She got the got the wrong Court, the wrong Judge, the wrong time, and perhaps the wrong pro bono attorney — and it’s likely to cost her life! That’s not justice, and that’s not a properly functioning U.S. Immigration Court that “guarantees fairness and due process to all.” Instead, the “captive” U.S. Immigration Court is turning into a “whistle-stop on the Trump/Sessions Deportation Railroad!” That’s something of which every true American should be ashamed. We need an independent, Due Process focused U.S. Immigration Court now!

PWS

01-16-18

WHAT’S WRONG WITH THIS PICTURE? — Mexican Journalist Emilio Gutierrez Who Exposed Government Corruption Received A Press Freedom Award from the National Press Club In Washington, DC. In Oct. 2016 – Now He Says The Trump Administration Plans To Kill Him By Denying His Asylum Application!

https://www.washingtonpost.com/world/national-security/denied-asylum-and-facing-deportation-mexican-journalist-says-hell-be-killed-if-sent-home/2017/12/08/15e96746-dc4c-11e7-b859-fb0995360725_story.html?utm_term=.eb9496127724

Nick Miroff reports for the Washington Post:

“A Mexican journalist who sought asylum in the United States in 2008 was arrested by U.S. immigration agents this week and told he would be deported, though an appeals board temporarily halted his removal Friday — sparing his life for now, he said.

Emilio Gutierrez, 54, who in October received a press freedom award from the National Press Club in Washington, said he and his 24-year-old son, Oscar, were taken into custody by Immigration and Customs Enforcement (ICE) on Thursday while trying to enter an appeal to their asylum claim.

“We can’t go back to Mexico. They’ll kill us,” Gutierrez said, using his attorney’s cellphone to speak from an ICE detention center in Sierra Blanca, Texas.

Gutierrez said he and his son fled northern Mexico’s Chihuahua state in 2008 after he published stories exposing the abuses committed by soldiers who robbed and extorted residents in his hometown, Ascención, a notorious drug trafficking hub.

After soldiers ransacked his home, Gutierrez said he learned his name appeared on a military “kill list,” so he fled across the border into Texas with his then-teeange son.

In July, after living nine years in the United States, Gutierrez’s asylum request was denied, and an appeal was rejected in early November. His attorney, Eduardo Beckett, said Gutierrez and his son were handcuffed and jailed Thursday when they presented themselves at an ICE processing center to enter an emergency appeal.

. . . .

With drug-related violence at record levels, Mexico has become one of the world’s most dangerous countries for the press, according to the New York-based Committee to Protect Journalists. More than 40 Mexican reporters have been murdered since 1992 for performing their jobs, including at least five this year. Only Iraq and Syria were more dangerous for the press in 2017, according to CPJ.

Journalists working in small towns plagued by drug cartel violence are especially vulnerable, but the dead have included staffers at some of Mexico’s leading publications.

Bill McCarren, the executive director of the National Press Club, said the organization gave Gutierrez this year’s press freedom award to draw attention to the plight of Mexico’s imperiled journalists. McCarren was alarmed to find out ICE agents were trying to send Gutierrez back to a place where his life would be in danger.

“This is a critical, existential issue for Emilio, but also a critical issue for all journalists in Mexico,” McCarren said in an interview. “It’s a concern for us that the United States, that stands for free press as a bedrock principle of our democracy, would not make a place for him here when he’s so clearly at risk.”

. . . .

But Hootsen said his organization cautions reporters against seeking asylum in the United States because the requests are likely to be denied. “The United States is obviously the place that first comes to mind for Mexican reporters who need to flee the country,” said Hootsen, “so it’s important for U.S. authorities to take their claims seriously and give them a fair hearing.”

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

Read Miroff’s complete story at the link.

Jeff Sessions would have you believe that frivolous asylum cases and failure to crank denials off the Immigration Court assembly line more quickly are the biggest problems. Not true!

Those of us who have spent a lifetime working in the system and actually understand asylum law, the correct legal criteria, and the shortcomings of EOIR know that the real crisis here is that far too many meritorious claims for protection are being denied by stressed and rushed Immigration Judges who don’t correctly understand asylum and protection law, are unsympathetic to asylum seekers, are forced to deal with unrepresented or underrepresented asylum applicants, or are afraid to put their careers on the line to stand up to politicos in this and other Administrations who seek to artificially limit the number of asylum grants at the potential expense of individual’s lives and safety.

PWS

12-10-17

 

GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!

http://thehill.com/opinion/immigration/355734-sessions-fundamentally-misses-the-mark-on-the-asylum-system

Lindsay writes:

“Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions.

. . . .

Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.

For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.

Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.

Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.

Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37 percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death.

Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.

Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees.

Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.”

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

Go on over to The Hill at the above link and read the rest of Lindsay’s article (containing her points 1-4, which I omitted in this excerpt).

I can confirm that those who have passed the “credible fear” process often mistakenly believe that they “applied for asylum” before the Asylum Office. I also found that few unrepresented respondents understood the difference between required reporting to the DHS Detention Office and reporting to Immigration Court.

Moreover, given the “haste makes waste” procedures applied to recent border arrivals, the addresses reported to EOIR by DHS or entered into the EOIR system were often inaccurate. Sometimes, I could tell they were inaccurate just from my own knowledge of the spelling and location of various streets and jurisdictions in Northern Virginia.  Another time, one of the Arlington Immigration court’s “eagle eyed” Court Clerks spotted that a number of supposed “in absentias” charged to Arlington were really located in the state of  “PA” rather than “VA” which had incorrectly been entered into our system. No wonder these were coming back as “undeliverable!”

Therefore, I would consider Sessions’s claim of a high “no show” rate to be largely bogus until proven otherwise. My experience was that recently arrived women, children, and families from the Northern Triangle appeared well over 90% of the time if they 1) actually understood the reporting requirements, and 2) actually got the Notice of Hearing. Those who were able to obtain lawyers appeared nearly 100% of the time.

This strongly suggests to me that if Sessions really wanted to address problems in Immigration Court he would ditch the knowingly false anti-asylum narratives and instead concentrate on: 1) insuring that everyone who “clears” the credible fear process has his or her Immigration Court hearing scheduled in a location and a manner that gives them the maximum possible access to pro bono legal representation; 2) insuring that appropriate explanations and warnings regarding failure to appear are given in English and Spanish, and 3) a “quality control initiative” with respect to entering addresses at both DHS and EOIR and serving Notices to Appear.

Jeff Sessions also acted totally inappropriately in delivering this highly biased, enforcement-oriented, political address to the EOIR. Although housed within the DOJ, EOIR’s only functions are quasi-judicial — fairly adjudicating cases. In the words of the Third Circuit Court of Appeals in a recent case the function of the Immigration Judiciary is “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.” Alimbaev v. Att’y Gen. of U.S.872 F.3d 188, 190 (3rd Cir. 2017).

Consequently, the only appropriate remarks for an Attorney General to make to EOIR and the Immigration Judiciary would be to acknowledge the difficulty of their judicial jobs; thank them for their service; encourage them to continue to render fair, impartial, objective, scholarly, and timely decisions; and explain how he plans to support them by providing more resources for them to do their important jobs. That’s it!!

What is totally inappropriate and probably unethical is for the Attorney General to deliver a “pep talk” to judges spouting the “party line” of one of the parties in interest (the DHS), setting forth inaccurate and unsupported statements of the law, and demeaning the other party to the judicial proceedings — the immigrant respondents and their attorneys.

Although I personally question their ultimate constitutionality under the Due Process Clause, the Attorney General does have two established channels for conveying his views on the law to the EOIR: 1) by incorporating them in regulations issued by the DOJ after public notice and comment; and 2) by “certifying” BIA decisions to himself and thereby establishing his own case precedents which the BIA and Immigration Judges must follow.

Troublesome as these two procedures might be, they do have some glaring differences from “AG speeches and memos.” First, public parties have a right to participate in both the regulatory and the precedent adjudication process, thus insuring that views opposed to those being advanced by the DHS and the Attorney General must be considered and addressed. Second, in both cases, private parties may challenge the results in the independent Article III Courts if they are dissatisfied with the Attorney General’s interpretations. By contrast, the “opposing views” to Session’s anti-asylum screed did not receive “equal time and access” to the judicial audience.

Sessions’s recent disingenuous speech to EOIR was a highly inappropriate effort to improperly influence and bias supposedly impartial quasi-judicial officials by setting forth a “party line” and not very subtilely implying that those who might disagree with him could soon find themselves “out of favor.” That is particularly true when the speech was combined with outrageous discussions of how “performance evaluations” for judges could be revised to contain numerical performance quotes which have little or nothing to do with fairness and due process.

Jeff Sessions quite obviously does not see the U.S. Immigration Courts as an independent judiciary charged with delivering fair and impartial justice to immigrants consistent with the Due Process clause of our Constitution. Rather, he sees Immigration Judges and BIA Appellate Judges as “adjuncts” to DHS enforcement — there primarily to insure that those apprehended by DHS agents or who turn themselves in to the DHS to apply for statutory relief are quickly and unceremoniously removed from the U.S. with the mere veneer, but not the substance, of Due Process.

Due process will not be realized in the U.S. Immigration Courts until they are removed from the DOJ and established as a truly independent Article I court.

PWS

10-31-17

 

 

 

 

“TERRIFIC TRIO” INSPIRES STUDENTS, FIGHTS FOR IMMIGRANT JUSTICE AT UVA LAW IMMIGRATION CLINIC — PLUS EXTRA BONUS: Go Back To School This Fall — Take My “One-Lecture” Class “Basic Asylum Law for Litigators” Right Here!

HERE THEY ARE!

INTRODUCING THE “TERRIFIC TRIO” – DEENA N. SHARUK, TANISHKA V. CRUZ, & RACHEL C. McFARLAND:

FACULTY

Email

dsharuk@law.virginia.edu

Deena N. Sharuk

  • Lecturer
  • Biography
  • Courses

Deena N. Sharuk teaches Immigration Law at the Law School.

Sharuk is currently practicing as an immigration attorney at the Legal Aid Justice Center in Charlottesville, Virginia, where she manages the Virginia Special Immigrant Juvenile Project. She received her B.A. in international relations with a specialization in human rights from Wellesley College. Sharuk received her law degree from Northeastern University School of Law.

After graduation, she worked as a fellow at the American Civil Liberties Union of Massachusetts and later practiced immigration law in Massachusetts and Virginia. Sharuk was recently appointed as a task force core team member to foster a welcoming environment for immigrants and minorities in Charlottesville and Albemarle county. She often presents to the community about changes in immigration law.

EDUCATION

  • JD.


Northeastern University School of Law 


2012





  • BA.


Wellesley College 


2007






 FACULTY

Email

tanishka@justice4all.org

Cell Phone

(434) 529-1811

Tanishka V. Cruz

  • Lecturer
  • Biography
  • Courses

Tanishka V. Cruz is an attorney in solo practice at Cruz Law, a Charlottesville-based immigration and family law firm. She is also an attorney with the Legal Aid Justice Center, where for the past two years she has focused on the management of the Virginia Special Immigrant Juvenile Project, an award-winning collaboration between LAJC and pro bono attorneys across the state. The project has saved more than 150 refugee children from likely deportation.

Cruz earned her B.A. from Temple University and her J.D. from the Drexel University Thomas R. Kline School of Law.

She currently supervises students in the Immigration Law Clinic, which LAJC runs in conjunction with the Law School

EDUCATION

  • JD.


Drexel University Thomas R. Kline School of Law


 2012





  • BA.


Temple University 


2004






FACULTY

Email

rmcfarland@justice4all.org

Rachel C. McFarland

  • Lecturer
  • Biography
  • Courses

Rachel C. McFarland is an attorney at Legal Aid Justice Center in Charlottesville. She focuses on cases in public and subsidized housing, unpaid wages for migrant workers and immigration.

McFarland earned her B.A. from the University of Richmond in 2009, where she majored in Latin American and Iberian studies, and rhetoric and communication studies. She received her J.D. from Georgetown University Law Center in 2015.

While at Georgetown, McFarland participated in the asylum clinic and received a certificate in refugees and humanitarian emergencies.

EDUCATION

  • JD.


Georgetown University Law Center 


2015





  • BA.


University of Richmond


 2009






 

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

Wow, what a totally impressive and multi-talented team! All three of these amazing lawyers also work at the Legal Aid and Justice Center in Charlottesville, VA. They tirelessly pursue justice for our most vulnerable! They teach their clinical students “real life” client interview, case preparation, organization, time management, negotiation, and litigation skills while giving them a solid background in probably the most important and dynamic area in current American Law: U.S. Immigration Law.

 

They do it all with energy, enthusiasm, good humor, and inspiring teamwork that will help their students be successful in all areas of life and law while contributing to the American Justice system.

 

I am of course particularly proud of Rachel McFarland who was one of my wonderful Refugee Law and Policy students at Georgetown Law and has gone on to “do great things” and help others as a “charter member” of the “New Due Process Army.” Way to use that “RLP” training and experience, Rachel! I know that my good friend and colleague Professor Andy Schoenholtz who runs the Georgetown Law Certificate in Refugees and Humanitarian Emergencies program is also delighted at how Rachel has chosen to use her specialized training!

Thanks again, Rachel, for “making your professors proud” of your dedication and achievements. I hope that your students will do the same for you (and your terrific colleagues)!

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

For those of you who want to replicate the class experience in Charlottesville last Wednesday, here is the complete text of my class presentation: “BASIC ASYLUM LAW FOR LITIGATORS!”

BASIC ASYLUM LAW FOR LITIGATORS-2SPACE

BASIC ASYLUM LAW FOR LITIGATORS

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

UVA LAW IMMIGRATON CLINIC

Charlottesville, VA

October 25, 2017

 

 

BASIC ASYLUM LAW FOR LITIGATORS

 

OUTLINE

 

I. INTRODUCTION

II. WHO IS A REFUGEE?

Refugee Definition

Standard of Proof

What Is Persecution?

Nexus

III. PARTICULAR SOCIAL GROUP

The Three Requirements

Success Stories

The Usual Losers

What Can Go Wrong?

A Few Practical Tips on PSG

IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT

V. CONCLUSION

 

 

 

 

 

I. INTRODUCTION

 

Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.

 

Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.

 

There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!

 

I’m truly delighted to be reunited with my friend and former student from Refugee Law & Policy at Georgetown Law, the wonderful Rachel McFarland. I am absolutely thrilled that Rachel has chosen to use her amazing talents to help those most in need and to be a teacher and an inspirational role model for others in the New Due Process Army. In addition to being brilliant and dedicated, Rachel exudes that most important quality for success in law and life: she is just one heck of a nice person! The same, of course, is true for your amazing Clinical Professor Deena Sharuk and her colleague Tanishka Cruz Thank you Deena, Tanishka, and Rachel, for all you are doing! All of you in this room truly represent “Due Process In Action.”

 

As all of you realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.

 

Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.

 

We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” including, sadly and most recently our Attorney General, losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.

 

I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of migrants are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.

 

Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.

 

I do want to offer one additional important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.

My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.

 

Please feel free to ask questions as we go along, or save them until the end.

 

II.        WHO IS A REFUGEE?

 

In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”

A.        Refugee Definition

 

An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.

The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:

  1. Generally, outside the country of nationality (not usually an issue in border cases);
  2. Unwilling or unable to return (failure of state protection);
  3. Because of persecution (undefined) or a well founded fear of persecution;
  4. On account of race, religion, nationality, membership in a particular social group, or political opinion (“nexus”).

 

There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.

Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.

Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution do not automatically qualify individuals for refugee status, although “persecution“ within the meaning of the INA and the Convention certainly can sometimes occur in these contexts. However, some of these circumstances that fail to result in refugee protection because of the “nexus” requirement might be covered by the CAT, which has no nexus requirement.

The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.

B.        Standard of Proof

 

The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.

The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.

A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.

Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.

C.        What Is Persecution?

 

Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.

In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner, who recently retired from the Seventh Circuit Court of Appeals, in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7th Cir. 2011). Judge Posner gave three examples.

“The three forms are discrimination, harassment, and persecution. The first [discrimination] refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”

Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”

Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”

These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.

D.        Nexus

 

The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.

The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.

The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fourth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fourth Circuit at present.

Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.

Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.

Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5th Cir. 2015). The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”

What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”

But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears designed to make the family PSG ground largely superfluous.

This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A,

and the BIA is unlikely to retreat from L-E-A-. On the other hand, the Fourth Circuit might not go along with the L-E-A- view, although Judge Wilkins appeared anxious to endorse L-E-A- in his separate concurring opinion in Valasquez v. Sessions, 866 F.3d 188 (4th Cir. 2017).

 

To my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. See, e.g., Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4th Cir. 2017) (slamming BIA for misapplying concept of “mixed motive”). So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.

 

In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your client’s currentproblems.

So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.

Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.

Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both UVA Clinic specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.

This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.

III.      PARTICULAR SOCIAL GROUP

 

In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.

A.        The Three Requirements

 

The BIA has established three requirements for a PSG.

  1. Immutability or fundamental to identity;
  2. Particularity; and
  3. Social distinction.

 

These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.

There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.

The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”

While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.

About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).

In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than the UVA Clinic – you guys!

B. Success Stories

There are four basic groups that have been relatively successful in establishing PSG claims.

  1. LGBT individuals under Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990);
  2. Women who fear or suffered female genital mutilation (“FGM”) under my decision in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996);
  3. Victims of domestic violence under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); and
  4. Family under the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th 2011), a case in which I was the Immigration Judge and Jones Day was pro bono counsel.

You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.

Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.

There are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.

Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.

You are likely to find a number of cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now.  As they say, “There’s a new sheriff in town and, unfortunately in my view, he looks a lot like the infamous “Sheriff Joe.”

Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014).

C. The Usual Losers

PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.

D. What Can Go Wrong?

Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.

An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.

We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.

That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.

Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.

E. A Few Practical Tips on PSG

I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.

First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.

 

Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.

 

Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”

 

Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.

 

Fifth, as I just mentioned, check your particular social group for “circularity.”

Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.

My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.

 

Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.

 

Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.

 

Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.

 

At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?

 

 

That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.

 

But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.

However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.

 

In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”

 

“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.

 

My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.

 

My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.

 

I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”

 

My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.

 

For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit.

 

This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.

 

My eleventh rule is to “Get Physical.”   In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).

 

I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?

 

My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htmwas effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.

 

My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.

 

Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”

 

But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.

 

Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyonewho has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect morearrests, more detention (particularly in far-away, inconvenient locations like, for instance, Farmville, VA), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.

 

The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”

V. CONCLUSION

 

In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.

 

Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.

 

I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”

 

Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.

 

Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.

 

 

(10-30-17)

© Paul Wickham Schmidt 2017. All Rights Reserved. 

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PWS

10-30-17

 

 

 

 

CHICAGO TRIBUNE: Asylum Experts Michelle Mendez & Swapna Reddy Challenge Gonzo’s Bogus Apocalyptic Smear Of U.S. Asylum Applicants!

http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-asylum-sessions-immigration-1024-20171023-story.html

Michelle and Swapna write:

“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?

These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.

Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.

Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.

Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.

And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.

Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”

But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.

The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.

Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.

. . . .

Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.

Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”

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Read the complete article at the link.

Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.

PWS

10-22-17

 

READ ABOUT EL SALVADOR, ONE OF THE PLACES WHERE “GONZO & HIS GANG” WOULD LIKE TO SEND REFUGEES WITHOUT GIVING THEM DUE PROCESS AND A FAIR CHANCE TO PLEAD FOR THEIR LIVES!

http://www.washingtonpost.com/sf/world/2016/10/28/el-salvadors-conflict-with-gangs-is-beginning-to-look-like-a-war/?tid=a_classic-iphone&utm_term=.66bd90942a8d

Fred Ramos reports for the Washington Post:

‘We see the police as terrorists’

In the next few weeks, four young men 16 to 24 years old were fatally shot by police during two incidents. Police on both occasions reported an “enfrentamiento,” or confrontation, in which gangsters fired on them. Relatives of the dead said that the officers killed the young men unprovoked.

As with much of the violence here, getting to the truth is difficult. Investigations are often cursory. Some residents said they are too afraid of the police to provide testimony. What is clear is many residents’ deep resentment of the security forces.

“We see the police as terrorists,” said an aunt of one of the four victims, 16-year-old Bryan Rodrigo Santos Arevalo.

The aunt, who spoke on the condition of anonymity, citing a fear of authorities, said that a witness who escaped told her that police had executed the teenager. The right side of Santos Arevalo’s face was blown off, morgue photos show.

If police were using lethal force, so were the gangs. On July 3, 2015, four local police officers were returning from a call when “they attacked us from both sides,” recalled a police supervisor who was present, speaking on the condition of anonymity. Gang members positioned on earthen mounds overlooking the road sprayed gunfire at the officers’ truck, he said. The police sped off, firing frantically, but the driver was hit in his left side. The supervisor was shot in the right knee.

“It’s a miracle that I am alive to tell this story,” the supervisor said.

Three days later, local police along with members of a San Salvador-based SWAT team shot and killed two members of the Tiny Malditos outside a farmhouse in Santa Teresa. The police reported taking gunfire on arrival. Morena Leiva de Silva, the mother of one of the dead, said a farmworker who was present told her that the officers shot the two gang members as they fled.

“They ran from the police because they were terrified,” she said. “They panicked.”

A truce ends

President Salvador Sánchez Cerén was a Marxist guerrilla in the 1980s. Now he is the one defending the state.

“Although some say we are at war, there is no other road,” Sánchez Cerén said in March.

The government of Sánchez Cerén’s predecessor, Mauricio Funes, had engineered a truce between major gangs, transferring their leaders into more lax prisons where they could coordinate with their followers. The homicide rate fell, although critics argued that the respite allowed the gangs to grow stronger.

On taking office in June 2014, Sánchez Cerén brought a swift end to the truce. His government transferred the leaders back to maximum-security lockups, banned visits and cut off cellphone access. He called up military reservists to join the fight against the gangs. The director of the national police announced that officers should feel free to use their weapons to protect themselves. New legislation made it harder to investigate police when they alleged self-defense.

Homicides shot up. Last year, police were responsible for an estimated 1,000 of the country’s 6,600 killings, a steep increase, experts say.

The gangs began targeting police, soldiers, prosecutors and their families in a way unseen. Gang members killed more than 60 police officers last year, nearly doubling the total the year before. Police have confiscated an increasing number of military-style assault rifles from gang members. The attorney general’s office recently accused one of the biggest gangs, Mara Salvatrucha, also known as MS-13, of planning to assemble a 500-man unit of trained gang members to attack security forces. Last fall, a car rigged with explosives detonated outside the Finance Ministry.

The U.N. High Commissioner for Human Rights warned in June that allegations of assassinations by El Salvador’s security forces are “intolerable and are likely to fuel even greater violence.”

The national human rights prosecutor’s office, an independent agency, has compiled a registry of nearly 100 cases of alleged assassinations by security forces or shadowy “extermination groups,” which often include off-duty police, since mid-2013. But the agency acknowledges that there may be many more.

Walter Gerardo Alegria, a deputy head of the office, said it wasn’t clear whether such killings were ordered by authorities. “However, from the quantity of cases that we have, one can assume that this is a systematic practice,” he said.

The director of the national police, Howard Cotto, said he couldn’t rule out that some officers may have taken part in summary executions, but he denied that such behavior was permitted.

“We are not willing to tolerate that under the guise of solving security problems we cover up for people who commit crimes or summary executions,” he said.

The campaign against gangs has been popular among many Salvadorans. But it may come at a terrible cost to this young democracy, said Hector Silva Avalos, who has written a book on the Salvadoran police.

“If between death squads, citizen squads, rough police officers, they kill enough gang members to actually diminish the territorial control of the gangs — then who’s going to be in charge?” he asked. “Police commanders with no respect for human rights?”

 ****************************************************
This is only a small part of a lengthy article which is available at the above link.
This, not Gonzo’s bogus “Blame DACA Narrative” or his fabricated fraud narrative, is why women and children are fleeing from the Northern Triangle and are likely to continue to do so regardless of how much “deterrence” Gonzo & Gang throw at them. And, these folks have potentially legitimate claims that should be fully and impartially heard in Immigration Court with the assistance of counsel and full appeal rights. Even those who do not fit the “technical requirements” for legal protection under U.S. law might well have strong humanitarian claims for temporary refuge under Temporary Protected Status (“TPS”) (which the last tow Administration ministrations have stubbornly refused to acknowledge) or prosecutorial discretion. We are hardly a “disinterested party” in the rampant violence that is now gripping Central America.
PWS
10-20-17

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

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

Mica Rosenberg, Read Levinson, & Ryan McNeill report:

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

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

Filed

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

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

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

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

That’s when their fates diverged.

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

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

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

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

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

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

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

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

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

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

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

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

“GROSS DISPARITIES”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CRISIS AT THE BORDER

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

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

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

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

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

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

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

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

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

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

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

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

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

“NO POLICE HERE”

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

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

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

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

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

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

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

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

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

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

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

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

“ASYLUM FREE ZONES”

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

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

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

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

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

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

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

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

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

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

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

DAY IN COURT

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

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

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

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

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

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

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

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

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

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

“SOMEONE WANTS TO KILL THEM”

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

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

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

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

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

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

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

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

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

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

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

Additional reporting by Gustavo Palencia and Kristina Cooke

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

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

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

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

Reade Levinson

Heavy Odds

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

Data: Reade Levinson and Ryan McNeill

Graphics: Ashlyn Still

Photo editing: Steve McKinley and Barbara Adhiya

Video: Zachary Goelman

Design: Jeff Magness

Edited by Sue Horton, Janet Roberts and John Blanton”

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

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

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

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

Great reporting by Mica and her team!

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

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

PWS

10-17-17

 

COURTSIDE BRINGS YOU “LAW YOU CAN USE!” – Hon. Jeffrey Chase Tells “Do’s and Don’t’s” Of Challenging CREDIBILITY On BIA Appeals! EXTRA BONUS! NEW PWS COMMENTARY: Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

 

https://www.jeffreyschase.com/blog/2017/10/12/challenging-credibility-findings-before-the-bia

Jeffrey writes:

Challenging Credibility Findings Before the BIA

“As discussed in last week’s post, in 2002, the standard under which the BIA reviews credibility determination was changed as part of the reforms instituted by then Attorney General John Ashcroft.  Furthermore, in 2005, Congress enacted the REAL ID Act, which provided immigration judges with broader grounds for determining  credibility.  These two factors combine to make it more difficult for the Board to reverse an immigration judge’s adverse credibility finding than it was prior to these changes.  The following are some thoughts on strategy when appealing credibility findings to the Board.

1. Don’t offer alternative interpretations of the record.

You cannot successfully challenge an adverse credibility finding by offering an alternative way of viewing the record.  If the IJ’s interpretation is deemed reasonable, the BIA cannot reverse on the grounds that it would have weighed the documents, interpreted the facts, or resolved the ambiguities differently.  Or as the Supreme Court has held, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”  Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).

2. Does the record support the IJ’s finding?

On occasion, the discrepancy cited by the IJ is not found in the transcript.  IJs hear so many cases; some hearings are spread over months or years due to continuances; witnesses or their interpreters do not always speak clearly; documents are sometimes clumsily translated.  For all of these reasons, it is possible that the IJ didn’t quite hear or remember what was said with complete accuracy, or might have misconstrued what a supporting document purports to be or says.  It is worth reviewing the record carefully.

3. Does the REAL ID Act standard apply?

The REAL ID Act applies to applications filed on or after May 11, 2005.  With the passage of time, fewer and fewer cases will involve applications filed prior to the effective date.  However, there are still some cases which have been administratively closed, reopened, or remanded which involve applications not subject to the REAL ID Act standard.  In those rare instances, look to whether the IJ relied on factors that would not support an adverse credibility finding under the pre-REAL ID standard.  For example, did the IJ rely on non-material discrepancies to support the credibility finding?  If so, argue that under the proper, pre-REAL ID Act standard, the discrepancies cited must go to the heart of the matter in order to properly support an adverse credibility finding.

4. Did the IJ’s decision contain an explicit credibility finding?

Under the REAL ID Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.”  See INA section 208(b)(1)(B)(iii) (governing asylum applications); INA section 240(c)(4)(C) (governing all other applications for relief).  Therefore, review the decision carefully to determine if an explicit credibility finding was made.  In some decisions, the immigration judge will find parts of the testimony “problematic,” or question its plausibility, without actually reaching a conclusion that the testimony lacked credibility.  In such cases, argue on appeal that the statutory presumption of credibility should apply.

5. Did the credibility finding cover all or only part of the testimony?

As an IJ, I commonly stated in my opinions that credibility findings are not an all or nothing proposition.  A respondent may be credible as to parts of his or her claim, but incredible as to other aspects.  There are instances in which a single falsehood might discredit the entirety of the testimony under the doctrine of falsus in uno, falsus in omnibus.  However, there are variations in the application of the doctrine among the circuits, and there are exceptions.  For example, the Second Circuit in Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) recognized the doctrine, but laid out five specific exceptions under which a false statement will not undermine the overall credibility.  However, the Seventh Circuit, in Kadia v. Gonzales, 501 F.3d 817 (7th Cir, 2007) rejected falsus in uno,referring to it as a “discredited doctrine.”  The Ninth Circuit, in Shouchen Yang v. Lynch, 815 F.3d 1173 (9th Cir. 2016), acknowledged that an IJ may apply the doctrine, but that the Board itself could not (for example, to deny a motion to reopen based on a prior adverse credibility finding).   Therefore, determine whether under the applicable circuit case law the falsehood cited by the IJ was sufficient to undermine all of the testimony.  If not, determine whether the remainder of the testimony is sufficient to meet the burden of proof.

6. Did the IJ rely on a permissible inference, or impermissible speculation?

In Siewe v. Gonzales, supra, the Second Circuit discussed the difference between a permissible inference and impermissible “bald” speculation.  The court cited earlier case law stating that “an inference is not a suspicion or a guess.”  Rather, an inference must be “tethered to the evidentiary record:” meaning it should be supported “by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.”  Generally, findings such as “no real Christian wouldn’t know that prayer” or “the police would never leave a copy of the arrest warrant” would constitute bald speculation unless there was expert testimony or reliable documentation in the record to lend support to such conclusion.

7. Did the IJ permissibly rely on an omission under applicable circuit law?

There is a body of circuit court case law treating omissions differently than discrepancies.  For example, several circuits have held that as there is no requirement to list every incident in the I-589,  the absence of certain events from the written application that were later included in the respondent’s testimony did not undermine credibility.  Look to whether the omission involved an event that wasn’t highly significant to the claim.  Also look for other factors that might explain the omission, i.e. a female respondent’s non disclosure of a rape to a male airport inspector; a respondent’s fear of disclosing his sexual orientation to a government official upon arrival in light of past experiences in his/her country.  Regarding omissions in airport statements, please refer to my prior post concerning the questionable reliability of such statements in light of a detailed USCIRF report.  See also, e.g., Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007); Ramseachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), addressing factors to consider in determining the reliability of airport statements.

8.  Was the respondent provided the opportunity to explain the discrepancies?

At least in the Second and Ninth Circuits, case law requires the IJ to provide the respondent with the opportunity to respond to discrepancies.  The Second Circuit limits this right to situations in which the inconsistency is not “dramatic,” and the need to clarify might therefore not be obvious to the respondent.  See Pang v. USCIS, 448 F.3d 102 (2d Cir. 2006).

9. Did the “totality of the circumstances” support the credibility finding?

Even under the REAL ID Act standards, the IJ must consider the flaws in the testimony under “the totality of the circumstances, and all relevant factors.”  INA sections 208(b)(1)(B)(ii), 240(c)(4)(C).  The circuit courts have held that the standard does not allow IJs to “cherry pick” minor inconsistencies to reach an adverse credibility finding.  For a recent example, note the Third Circuit’s determination in Alimbaev v. Att’y Gen. of U.S. (discussed in last week’s post) finding two inconsistencies relied on by the BIA as being “so insignificant…that they would probably not, standing alone, justify an IJ making an adverse credibility finding…”

Copyright 2017 Jeffrey S. Chase.  All rights reserved.”

REPRINTED WITH PERMISSION

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Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

For those of you who don’t know him, Judge Jeffrey Chase has a unique perspective starting his career in private practice, becoming a U.S. Immigration Judge in New York, and finally finishing his Government career as an Attorney Advisor writing decisions for the BIA.

Great stuff, Jeffrey!  I love being able to help folks “tune in” to things the they can actually use in the day to day practice of immigration law!

One of the best ways to fight “Gonzoism” and uphold due process is by winning the cases one at a time through great advocacy. Don’t let the “false Gonzo narrative” fool you! Even under today’s restrictive laws (which Gonzo would like to eliminate or make even more restrictive) there are lots of “winners” out there at all levels.

But given the “negative haze” hanging over the Immigration Courts as a result of Gonzo and his restrictionists agenda, the best way of stopping the “Removal Railway” is from the “bottom up” by: 1) getting folks out of “Expedited Removal” (which Gonzo intends to make a literal “killing floor”); 2) getting them represented so they can’t be “pushed around” by DHS Counsel and Immigration Judges who fear for their jobs unless they produce “Maximo Removals with Minimal Due Process” per guys like Gonzo and Homan over at DHS; 3) getting them out of the “American Gulag” that Sessions and DHS have created to duress migrants into not seeking the protection they are entitled to or giving up potentially viable claims; 4) making great legal arguments and introducing lots of corroborating evidence, particularly on country conditions, at both the trial and appellate levels (here’s where Jeffrey’s contributions are invaluable); 5) fighting cases into the U.S. Courts of Appeals (where Gonzo’s false words and perverted views are not by any means the “last word”); and 5) attacking the overall fairness of the system in both the Courts of Appeals and the U.S. District Courts — at some point life-tenured Article III have to see the absolute farce that an Immigration Judiciary run by a clearly biased xenophobic White Nationalist restrictionist like Sessions has become. Every time Gonzo opens his mouth he proves that the promise of Due Process in the Immigration Courts is bogus and that the system is being rigged against migrants asserting their rights.

Sessions couldn’t be fair to a migrant or treat him or her like a human being if his life depended on it! The guy smears dreamers, children whose lives are threatened by gangs, hard-working American families, LGBTQ Americans, and women who have been raped or are victims of sexual abuse. How low can someone go!

Virtually everything Gonzo says is untrue or distorted, aimed at degrading the humanity and legal protections of some vulnerable group he hates (Gonzo’s “victim of the week”), be it the LGBTQ community, asylum seekers, women, children, immigrants, Muslims, African-Americans, attorneys, the Obama Administration, or U.S. Immigration Judges trying to do a conscientious job. Perhaps the biggest and most egregious “whopper” is his assertion that those claiming asylum at the Southern Border are either fraudsters or making claims not covered by law.

On the contrary, according to a recent analysis by the UNHCR, certainly a more reliable source on asylum applicants than Gonzo, “over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border ‘were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.'” “Majority of Asylum Seekers have Legitimate Claims: Response to Sessions Statement,” available online at https://www.wola.org/2017/10/no-basis-claims-rampant-abuse-us-asylum-system-response-sessions-statement/.

This strongly suggests that the big fraud here isn’t coming from asylum seekers. No, the real fraud is the unusually high removal rate at the border touted by Gonzo and his EOIR “patsies” — the result of improper adjudications or unlawful manipulation of the system (intentional duress – misinforming individuals about their rights) by DHS, the U.S. Immigration Court, or simply wrong constructions of protection law.

I think that the majority of Immigration Court cases are still “winners” if the respondents can get competent representation and fight at all levels. Folks, Jeff “Gonzo Apocalypto” Sessions has declared war on migrants and on the Due Process Clause of our Constitution.

He’s using his reprehensible false narratives and “bully pulpit” to promote the White Nationalist, Xenophobic, restrictionist “myth” that most claims and defenses in Immigration Court are “bogus” and they are clogging up the court with meritless claims just to delay removal. The next step is to eliminate all rights and expel folks without any semblance of due process because Gonzo has prejudged them in advance as not folks we want in our country. How biased can you get!

So, we’ve got to prove that many, probably the majority, of the cases in Immigration Court have merit! Removal orders are being “churned out” in “Gonzo’s world” by using devices such as “in absentia orders” (in my extensive experience, more often than not the result of defects in service by mail stemming from sloppiness in DHS and EOIR records, or failure of the DHS to explain in Spanish — as required by law but seldom actually done — the meaning of a Notice to Appear and the various confusing “reporting requirements”); blocking folks with credible fears of persecution or torture from getting into the Immigration Court system by pushing Asylum Officers to improperly raise the standard and deny migrants their “day in court” and their ability to get representation and document their claims; using detention and the bond system to “coerce” migrants into giving up viable claims and taking “final orders;” intentionally putting detention centers and Immigration Courts in obscure detention locations for the specific purpose of making it difficult or impossible to get pro bono representation and consult with family and friends; using “out-of-town” Immigration Judges on detail or on video who are being pressured to “clear the dockets” by removing everyone and denying bonds or setting unreasonable bonds; sending “messages” to Immigration Judges and BIA Judges that most cases are bogus and the Administration expects them to act as “Kangaroo Courts” on the “Removal Railroad;” taking aim at hard-earned asylum victories at all levels by attacking and trying to restrict the many favorable precedents at both the Administrative and Court of Appeals levels that Immigration Judges and even the BIA often ignore and that unrepresented aliens don’t know about; improperly using the Immigration Court System to send “don’t come” enforcement messages to refugees in Central America and elsewhere; and shuttling potentially winning cases to the end of crowded dockets through improper “ADR” and thereby both looking for ways to make those cases fail through time (unavailable witnesses, changing conditions) and trying to avoid the favorable precedents and positive asylum statistics that these “winners” should be generating.

Folks, I’ve forgotten more about immigration law, Due Process, and the Immigration Courts than Gonzo Apocalypto and his restrictionist buddies on the Hill and in anti-immigrant interest groups will ever know. Their minds are closed. Their bias is ingrained. Virtually everything coming out of their mouths is a pack of vicious lies designed to “throw dirt” and deprive desperate individuals of the protections and fairness we owe them under our laws, international law, and our Constitution. Decent human beings have to fight Gonzo and his gang of “Bad Hombres” every inch of the way so that their heinous and immoral plan to eliminate immigration benefits and truncate Due Process for all of us on the way to creating an “Internal Security Force” and an “American Gulag” within the DHS will fail.

Remember,”as you did it to one of the least of these my brothers, you did it to me.”  Gonzo’s going to have some ‘splainin top do at some point in the future!

Stand Up For Migrants’ Rights! “Gonzo and His Toxic Gang Must Go!” Sen. Liz Warren was absolutely right. Demand a “recount” on the NYT “Worst Trump Cabinet Member” poll. Gonzo is in a class by himself!

 

PWS

10-14-17

 

 

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

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

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

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

See:

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

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

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

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

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

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

 

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

163921np

What happened:

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

What should have happened:

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

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

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

What actually happened:

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

What the Third Circuit said:

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

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

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

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

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

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

What happened:

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

According to the U.S. State Department,

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

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

What should have happened:

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

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

What really happened:

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

What the Secomd Circuit said:

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

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

CONCLUSION

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

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

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

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

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

PWS

08-27-17

 

 

 

 

 

 

 

 

 

 

 

“BASIC ASYLUM TRAINING FOR LITIGATORS” — Read My July 25, 2017 Pro Bono Training Presentation For Jones Day!

Click on this link for a “Printable Copy”:

JONES DAY TRAINING

Here’s the “complete text:”

BASIC ASYLUM LAW FOR LITIGATORS

 

OUTLINE

 

I.  INTRODUCTION

II. WHO IS A REFUGEE?

A. Refugee Definition

B.  Standard of Proof

C.  What Is Persecution?

D.  Nexus

 

III. PARTICULAR SOCIAL GROUP

A.  The Three Requirements

B.  Success Stories

C.  The Usual Losers

D.  What Can Go Wrong?

E.  A Few Practical Tips on PSG

 

IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT

V.  CONCLUSION

 

  1. INTRODUCTION

 

Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.

 

Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.

 

There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!

 

I appreciate the outstanding leadership and amazing commitment of your managing partner Steve Brogan, your Global Pro Bono Coordinator Laura Tuell, and folks like Mary Hale and many others who have been making this happen on a daily basis. It’s what I call “due process in action.” I know that Steve feels very deeply about the overwhelming need for everyone to get a day in court. He has written very forcefully and eloquently on it in the past and has certainly helped to raise the profile of the representation crisis facing our Immigration Courts.

 

Jones Day isn’t just “talking the talk.” Although it’s now been 25 years since the end of my time as a partner in Jones Day’s Washington Office, I am well aware of the tremendous time and financial commitment that your partnership is making to saving and preserving our justice system and in many cases to saving the very lives of the folks who depend on it. For, as Steve and others at the firm realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.

 

I also congratulate and appreciate your willingness to undertake representation in all types of cases, rather than “cherry picking” likely winners as is always a temptation. As a judge, I found that cases that look like “sure losers” at the Master Calendar sometimes turn into “winners” when a knowledgeable and dedicated attorney enters the picture.

 

Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.

 

We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.

 

I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of a detained migrant are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.

 

Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.

 

I do want to offer one important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.

My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.

 

Please feel free to ask questions as we go along, or save them until the end.

 

II.        WHO IS A REFUGEE?

 

In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”

A.        Refugee Definition

 

An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.

The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:

  1. Generally, outside the country of nationality (not usually an issue in border cases);
  2. Unwilling or unable to return (failure of state protection);
  3. Because of persecution (undefined) or a well founded fear of persecution;
  4. On account of race, religion, nationality, membership in a particular social group, or political opinion (“nexus”).

 

There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.

Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.

Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution often do not qualify individuals for refugee status. However, some of these circumstances might be covered by the CAT, which has no nexus requirement.

The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.

B.        Standard of Proof

 

The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.

The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.

A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.

Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.

C.        What Is Persecution?

 

Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.

In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner of the Seventh Circuit Court of Appeals in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7th Cir. 2011). Judge Posner gave three examples.

“The three forms are discrimination, harassment, and persecution. The first refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”

Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”

Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”

These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.

D.        Nexus

 

The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.

The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.

The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fifth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fifth Circuit at present.

Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.

Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.

Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5th Cir. 2015). Consequently, you will have to deal with the restrictive interpretation in L-E-A- and Ramirez-Mejia.

The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”

What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”

But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears to made the family PSG ground largely superfluous.

This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A-, the BIA is unlikely to retreat from L-E-A-, and the Fifth Circuit seems disposed to go along with the L-E-A- view.

On the other hand, to my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.

In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your detained client’s current problems.

So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.

Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.

Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both Jones Day specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.

This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.

III.      PARTICULAR SOCIAL GROUP

 

In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.

A.        The Three Requirements

 

The BIA has established three requirements for a PSG.

  1. Immutability or fundamental to identity;
  2. Particularity; and
  3. Social distinction.

 

These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.

There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.

The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”

While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.

About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).

In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than Jones Day – you guys!

B. Success Stories

There are four basic groups that have been relatively successful in establishing PSG claims.

  1. LGBT individuals under Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990);
  2. Women who fear or suffered female genital mutilation (“FGM”) under my decision in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996);
  3. Victims of domestic violence under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); and
  4. Family under the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th 2011), a case in which I was the Immigration Judge and Jones Day was pro bono counsel.

You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.

Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.

You probably will not encounter too many FGM cases at the Southern Border. Nevertheless, there are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.

Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.

You are likely to find a number of Southern Border cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now. And, sadly, you won’t be presenting these cases in Arlington.

Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014).

C. The Usual Losers

PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases at the Southern border. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.

D. What Can Go Wrong?

Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.

An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.

We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.

That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.

Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.

E.  A Few Practical Tips on PSG

I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.

First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.

 

Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.

 

Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”

 

Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.

 

Fifth, as I just mentioned, check your particular social group for “circularity.”

Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.

My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.

 

Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.

 

Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.

 

Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.

 

At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?

 

 

That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.

 

But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.

However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.

 

In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”

 

“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.

 

My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.

 

My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.

 

I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”

 

My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.

 

For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit. Nor are the courts in Texas where most of you will be appearing.

 

This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.

 

My eleventh rule is to “Get Physical.”   In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).

 

I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?

 

My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm was effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.

 

My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.

 

Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”

 

But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.

 

Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyone who has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect more arrests, more detention (particularly in far-away, inconvenient locations like, for instance, Laredo, TX), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.

 

The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”

V. CONCLUSION

 

In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.

 

Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.

 

I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”

 

Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.

 

Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.

 

© Paul Wickham Schmidt, 2017, All Rights Reserved.

(08-01-17++)

 

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PROGRAM NOTE: I am a former Partner at Jones Day. resident in the Washington, D.C. Office.

 


 

U.S. IMMIGRATION COURTS APEAR STACKED AGAINST CENTRAL AMERICAN ASYLUM APPLICANTS — Charlotte, NC Approval Rates Far Below Those Elsewhere In 4th Circuit — Is Precedent Being Misapplied?

https://www.washingtonpost.com/national/migrants-in-surge-fare-worse-in-immigration-court-than-other-groups/2017/07/30/e29eeacc-6e51-11e7-9c15-177740635e83_story.html?utm_term=.5d2ca3c80278

 

Julia Preston of The Marshall Project reports in the Washington Post:

— Toward the end of a recent morning hearing in immigration court, Judge V. Stuart Couch looked out from his bench on a nearly empty chamber. On one side sat the prosecutor. But at the table for the immigrants, the chairs were vacant.

From a stack of case files, Couch called out names of asylum seekers: Dina Marciela Baires from El Salvador and her three children. No answer. Lesley Carolina Cardoza from Honduras and her young daughter. Silence. After identifying 17 people who had failed to appear for their hearings, the judge ordered all of them to be deported.

The scene is replaying across the country as immigration courts resolve the asylum cases of families who streamed across the Southwest border since 2014. Tens of thousands of families from El Salvador, Honduras and Guatemala, and some from Mexico, came here citing their need for protection from predatory gangs and criminal violence. Now, they face the prospect of being sent back to countries they fear have not become any less dangerous.

Of nearly 100,000 parents and children who have come before the courts since 2014, most asking for refuge, judges have issued rulings in at least 32,500 cases, court records show. The majority — 70 percent — ended with deportation orders in absentia, pronounced by judges to empty courtrooms.

Their cases are failing just as President Trump is rapidly expanding deportations.

Immigration courts have long had high rates of in absentia rulings, with one-quarter of all cases resolved by such decisions last year. But the rate for families who came in the border surge stands out as far higher, according to the Justice Department office that runs the immigration courts and tracked the cases of those families over the past three years.

Many immigrants did not understand what they were supposed to do to pursue their claims and could not connect with lawyers to guide them. Some just stayed away, fearing they could be deported directly from courthouses and choosing instead to take their chances in the immigration underground.

New cohort of fugitives

As a result, migrants from the surge are faring worse in the courts than other groups. By late January, the courts had granted asylum or otherwise allowed migrants to remain legally in this country in 3,792, or 11 percent, of those cases involving families, the figures show. By contrast, in all asylum cases last year, 43 percent ended in approvals.

The large-scale failure of the families’ claims is the final unraveling of President Barack Obama’s strategy to deal with the asylum seekers.

Unlike most illegal border crossers, who can generally be swiftly deported, many recent migrants from Central America asserted that they had strong reasons for seeking protection in the United States. Rather than dodging the Border Patrol, they turned themselves in, saying they were afraid to return home. Under U.S. law, that starts an asylum proceeding in which courts evaluate claims that migrants faced dangerous persecution.

When the surge began in 2014, Obama administration officials, worried they could spur an even greater flow if they accepted the migrants as refugees, tried to detain them near the border and deport them. But federal courts curtailed the detention of children and their parents, and so the Obama administration funneled them into immigration courts to ask for asylum. Families and unaccompanied minors who passed a first stage of screening at the border were released to pursue their cases in courts around the country.

In many of those cases, judges in the overburdened courts are only now rendering their decisions — and families from the Central American surge are becoming a new cohort of immigrant fugitives.

In the past, an order of removal — the immigration equivalent of an arrest warrant — did not necessarily lead to swift expulsion. But the Trump administration has made it clear that anyone on the wrong side of immigration law can be tracked down and deported, whether or not they committed a serious crime.


María Arita and her children, Amilcar, left, and Allison, at their home in Charlotte. Arita came to the United States from Honduras in 2013 with her then-3-year-old son to escape a gang that was targeting her family. (Logan Cyrus/For The Washington Post)
‘Don’t stop in Charlotte!’

The fates of the asylum-seeking families are particularly stark in Charlotte. Three immigration judges, appointed by the U.S. attorney general, labor under a backlog of nearly 8,000 cases. The court, which covers both Carolinas, has an amply earned reputation as one of the toughest in which to win an asylum case.

María Arita discovered these realities only after she left Honduras in 2013, forded the Rio Grande in south Texas with her 3-year-old son, turned herself in to border authorities and was sent to Charlotte to join her husband, who had found work here after coming illegally a year earlier. She said a mara — a criminal gang — had taken a dislike to her husband, for reasons the family still does not fully understand. But the gang made its animus very clear.

“First they killed my brother-in-law,” Arita said, trying to remember the attacks in the correct order. “Then they killed my father-in-law. Then . . . they shot another brother-in-law. That’s when my husband realized he had to get out, and he left for the United States. Then they broke down the door of my house. I wasn’t home, but they left a message saying they were going to kidnap my son to make my husband come back.”

Unlike many asylum seekers in this region, Arita found a lawyer. But after she paid several thousand dollars in legal fees, she said, he dropped her case. Despite her family’s trail of death in Honduras, he told her, she wasn’t going to win in Charlotte.


A photo of María Arita from when she was living in Honduras, next to a school photo of her son, Amilcar. (Logan Cyrus/For The Washington Post)

Terrified of going back, she went by herself to a hearing this spring. Before it was over, the judge had denied her claim and given her a few weeks to pack up, take her son and leave the United States. Results like that are among many reasons immigrants nationwide have been failing to appear in court.

Some migrants came to this country more to escape poverty than violence, and they may have avoided court because they knew their asylum claims were likely to be rejected. But more than 85 percent of the families passed the first legal test for asylum, in which they had to show they had a “credible fear” of returning home, according to Department of Homeland Security figures.

For many of them, the law itself presents a problem. Migrants running from gangs do not easily fit into the classic categories for asylum, which offers protection to people fearing persecution based on race, religion, nationality or politics. Yet in some courts, artful lawyers have won for people from Central America by crafting cases to fit a fifth, more loosely defined category of persecution in the law, against members of a “particular social group.” In recent years, migrant women have also won if they were escaping extreme domestic violence.

But not in Charlotte. Couch and Judge  — two out of three judges on the bench — have made it clear they view asylum as a narrow opportunity, and they regard claims stemming from gang violence as inconsistent with the letter of the law. Couch has scolded lawyers for trying to bend the statute like “silly putty” to make it work for Central American migrants.

Couch grants asylum in 18 percent of the cases he hears, while Pettinato grants 15 percent, both less than half the national rate, according to an analysis of court records by the Transactional Records Access Clearinghouse (TRAC), a data research group at Syracuse University. As sitting judges, Couch and Pettinato were not able to comment on their rulings.

“We should set up billboards on the highway for people coming from the border. Keep going, don’t stop in Charlotte!” said Viridiana Martínez, who works with Alerta Migratoria, a group in Durham, N.C., that helps immigrants fight deportation.”

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Read Julia’s complete article at the link.

According to the FY 216 Statistics Yearbook, elsewhere in the Fourth Circuit the Baltimore Immigration Court granted 63% of asylum application while the Arlington Immigration Court was nearly identical with 62%. The Charlotte Immigration Court, on the other hand, was 17%.

The Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) and the BIA in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) both commanded that the “well-founded fear” standard for asylum be generously applied in favor of applicants! Although the BIA has not been as generous as it could and should have been in cases involving Central Americans needing protection from targeted gang violence, they have gone out of their way to reject notions that there should be any “presumption” against asylum grants from Central America. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 251 (BIA 2014), the BIA cautioned their decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. . . . . Social group determinations are made on a case-by-case basis.”

Moreover, established BIA precedents giving favorable treatment to LGBT individuals and those seeking protection from domestic violence frequently apply to cases of those fleeing Central America. See e.g., Matter of Tobaso-Alfonso, 20 I&N Dec. 819 (BIA 1990) (gays); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)  (domestic violence). Additionally, the Fourth Circuit Court of Appeals has generally been protective of the substantive and procedural rights of asylum  seekers. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117  (4th Cir. 2011) (family members).

Something is seriously wrong in the Charlotte Immigration Court. Due process is not being fully protected. More seriously, nobody in “the system” — DOJ & EOIR — appears to care or be doing anything to correct the problems in Charlotte.

This is symptomatic of deeper problems in our U.S. Immigration Court system: 1) a weak BIA that fails to protect asylum seekers and require IJs to follow precedents favorable to asylum seekers; 2) lack of proper training compounded by the departure of experienced judges, hiring of new judges, and an inexplicable decision by the DOJ to cancel IJ training this year; and 3) a biased selection system that has systematically excluded private sector asylum expertise developed in representing applicants over this and the past three Administrations. Overall, it is what happens when a system lacks judicial independence and has not developed a merit selection system for judges.

The Immigration Judges in Charlotte can and should do better in providing fairness and due process for asylum seekers. Given the systemic failures, at present it appears to be up to those representing asylum seekers and the Fourth Circuit Court of Appeals to see that asylum seekers in the Charlotte Immigration Court receive the Constitutional due process to which they are entitled.

PWS

07-31-17