🤯 BORDER: THE “ADULTS IN THE ROOM” DON’T WORK FOR THE USG OR TEXAS: Dedicated Volunteers Left To “Pick Up The Pieces” Of Human Carnage From GOP Racism & Biden Administration’s Lack Of Courage, Competence, Creativity, & Resolve! — Failed Political Leadership On Migration On Both Sides Of The Border & Uncritical Reporting From Most Media Are A Big Part Of The Problem!

Melissa Del Bosque
Melissa Del Bosque
Border Reporter
PHOTO: Melissadelbosque.com

From The Border Chronicle:

From Education to Everything Else

Felicia Rangel-Samporano and Victor Cavazos founded The Sidewalk School, then a migrant shelter in Mexico. Now they also provide tech-support for a flawed U.S. immigration app.

MELISSA DEL BOSQUE
MAR 14

. . . .

Since opening, the school has also expanded to the neighboring Mexican border city of Reynosa. Because life in the migrant camps is transitory, The Sidewalk School’s teachers came and went, sometimes within weeks, said Rangel-Samponaro. They decided it would be easier to hire educators from Mexican border communities instead. Residents also understand better how to navigate the complicated dynamics at play in cities like Matamoros and Reynosa, which are riven by cartel-related crime—most recently, the kidnapping of four U.S. citizens in Matamoros, two of whom were shot and killed by cartel gunmen.

The Sidewalk School teaches based on the U.S. school calendar. In February they celebrated Black History Month, for example, she said. They focus on reading, writing, drawing, and play activities. Classes are typically held from 10:00 a.m. to 3:00 p.m. They currently have 10 people on staff in Matamoros and Reynosa. “We need even more staff,” Rangel-Samponaro said. “In both cities.”

Frontline Responders

As elected leaders in both Mexico and the United States fail to acknowledge the seismic shift in global displacement due to climate change, Covid-19, and other factors, migrant camps continue to appear up and down the Mexican border.

Border residents have been frontline responders, adapting to the most pressing needs in the camps, one of which is housing. Recently, The Sidewalk School joined the church group Kaleo International to build a shelter in Reynosa. The shelter houses mostly Haitian and African migrants, who are some of the most vulnerable since they are routinely targeted for kidnapping and persecution in Mexico.

But one of the biggest surprises, said Rangel-Samponaro, is that they now serve as tech support for the CBP One app, which was rolled out in January by the U.S. government for migrants to apply for asylum, as an exemption to Title 42. The app has been plagued with errors. And humanitarian groups have complained that the app, which requires that each person upload a selfie to begin the asylum process, often won’t accept photos of darker-skinned applicants.

Currently, there are thousands of Haitians in both Reynosa and Matamoros, as well as other darker-skinned asylum seekers, who are stuck because they can’t get the app to accept their photos. (The manual on the app, which Sidewalk School employees consult daily is 73 -pages long).

I visited Reynosa and The Sidewalk School in late February and spoke with several Haitian families who had tried to use the CBP One app.

Upgrade to paid

I was quickly surrounded by frustrated parents who said they’d been trying for weeks to make the app work. Living in makeshift shelters made of tarps and cardboard and having little to no access to the internet, parents were waking up at 3:00 a.m. in the morning to find a place with an internet connection, then registering, and trying to take and upload their photo before 8:00 a.m., when the app began accepting daily applications.

“I have an appointment,” one father told me. “But the app won’t accept the photos of my children, so I can’t get appointments for them.”

The app often timed out, crashed, or gave error messages, they said. “It’s a disaster,” one man said, after I asked him to sum up his experience trying to use the app.

“People don’t like hearing it, much less acknowledging what is happening to Black asylum seekers,” Rangel-Samponaro said. “They are stuck inside these encampments for months compared to people of Latin descent, who are at the camps for maybe two weeks or a month.”

I spoke with at least 10 different Haitian families, and they all told me that they’d been living in the migrant camp in Reynosa for at least five months.

“We don’t have enough food,” a Haitian boy told me in Spanish, who said he was 11 years old. “And I have this rash on my face.” He pointed to his cheek. Open sewers and trash littered the area around the camps. And the families, who said they couldn’t work and were struggling to buy food, said they were growing desperate.

Border Chronocle

Felicia Rangel-Samporano visiting a migrant camp in Reynosa with mostly Haitian and Venezuelan asylum seekers. (Photo: Melissa del Bosque)

So desperate that families were considering splitting up. Rangel-Samponaro  said there had been anguished meetings with parents who were considering sending their children across as unaccompanied minors. If the parents could get appointments through the app, they would reclaim their children once they arrived in the United States. At least that’s what they hoped.

Recently, The Sidewalk School brought in an immigration attorney to explain to parents how difficult it can be to find a child once they have been designated as unaccompanied in the U.S. immigration system. Children are held by CBP, then transferred to a shelter run by the Office of Refugee Resettlement somewhere in the country. “We’ve explained to them that it’s unlikely that they will cross, and their child will be there waiting for them,” she said.

And once people are accepted by the app for an appointment, they are extensively vetted through a series of law enforcement databases, and some are turned back, she said. “Just because you’ve got an appointment doesn’t mean they’re going to let you in to the United States.”

Rangel-Samponaro, like many others who provide humanitarian services in Mexico, is in frequent contact with CBP about problems with the app. In early March, she said, the agency updated the app so that it only requires one member of the family to submit a photo. But there are still not enough appointments for every member of the family, she said, so families are still splitting up and sending their children across as unaccompanied minors.

The Border Chronicle requested a response from CBP about the app. Tammy Melvin, a CBP press officer, replied in an email that the agency “continues to make improvements to the app based on stakeholder feedback.”

She said that “appointments will only be shown if enough slots for each member in the profile is available.”

And Melvin added in the email that they’ve not seen any issues linked to ethnicity. “CBP One is not conducting facial recognition that compares photos submitted in the application against any other reference system to identify someone,” She wrote. “CBP is not seeing any issues with the capture of the liveness photos due to ethnicity.”

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Rangel-Samponaro and others disagree. “We’ve invited the app developers to Reynosa and Matamoros to see the problems we’re having firsthand, but they’ve declined to visit,” she said.

Meanwhile, the hardships keep growing for asylum seekers. Recently, the Biden Administration announced, beginning in May after Title 42 is lifted, that asylum seekers must apply for asylum in the first country they enter, rather than at the U.S.-Mexico border.

Rangel-Samponaro said The Sidewalk School is doing everything it can to help, as even more people will likely be stuck in limbo after the policy change in May. They’re providing educational programs, running a shelter, and now providing tech support, and helping people navigate the U.S. government’s glitch-filled app. “I struggle to categorize everything that we do now,” she said.

Border Chronicle 2

Just one of the many error messages encountered while using the CBP One app that Rangel-Samponaro and others try to troubleshoot for asylum seekers. [The “error messages” are all too real! The CBP denial that there is a problem is surreal!]

The first two years were rough going, she said, and she and Cavazos spent their own money to keep The Sidewalk School afloat. Now they’re receiving some grants and donations. But it’s always a struggle, she said. “We need more volunteers, more funding,” she said. “Because the need never stops.”

For volunteer opportunities and to learn more about The Sidewalk School click here.

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

Read Melissa’s full article at the link.

How’s this for “contrast?” Felicia Rangel-Samporano and Victor Cavazos, private citizens, gave up comfortable lives in the U.S. and invested their own time and money in addressing the needs of children and families essentially “tashed” by lawless inhumane policies of both the Trump and Biden Administrations. Meanwhile, racist, cowardly, bullying Gov. Greg Abbott (R-TX) is leading a clearly unconstitutional effort to deny children in Texas U.S. the public education to which they are entitled under Supreme Court precedent. Have to ask what’s wrong with a state that puts a horrible person like Abbott, who doesn’t even govern very well in emergencies or other areas, in charge? They also enabled Texas Attorney General Ken Paxton (R), another bullying, lawless, coward who is basically the “bottom of the barrel!”

What the major networks and “mainstream”nmedia aren’t telling you:

  • “[E]lected leaders in both Mexico and the United States fail to acknowledge the seismic shift in global displacement due to climate change, Covid-19, and other factors;”
  • “Same old, same old” deterrence and officially-sanctioned cruelty, even in large, expensive, wasteful doses will NOT “solve” refugee flows;
  • The U.S. “system,” such as it is, systematically mistreats Black asylum seekers;
  • “CBP One” is defective technology that should never have been put into operation without testing and approval from the humanitarians actually working in the camps in Mexico;
  • So bad is CBP One that it is encouraging family separation;
  • The “requirement” that every family member obtain a separate appointment through  CBP One is totally insane;
  • Even when asylum applicants get an appointment, it’s still a “crap shoot” because the Administration functions in a lawless, opaque, and arbitrary fashion without the necessary legal and practical expertise and safeguards in place;
  • The very idea that Mexico is a “safe” place to send non-Mexicans rejected at the border, under the totally irrational and illegal “presumption of denial” proposed by the Administration, is beyond preposterous;
  • The Biden Administration has failed to heed the advice of experts who have actually worked on the border and who have constructive ideas for making the law work.

I’m not just getting the above from this article. I have recently had a chance to hear from individuals actually providing legal and humanitarian services at the border who basically said that the situation there is “beyond FUBAR” and that the Administration officials “crafting” border policies are out of touch with reality and not up to their jobs! In some cases, they are just paying no attention to the law or the advice of those who actually understand the system, both in and out of Government. 

That seems exactly what we voted out of office when the Trump kakistocracy was removed. Why, then, does Biden think that ignorance, bias, cruelty, and incompetence on human rights and racial justice is now a “winner?” Why is he aligning himself and his Administration with GOP nativist zealots like Abbott, Paxton, DeSantis, Trump, and Miller, rather than with folks like Rangel-Samporano  and Cavazos who actually represent the humane, practical, problem-solving values that the Dems ran on in 2020?🤯

With human lives at stake every day, one would think that our Government’s massive violations of human rights and cavalier dismissal of legal rights recognized for more than four decades, would be of great interest to the so-called “mainstream media” and that all Democrats would be demanding changes in human rights/immigration leadership (obviously, Mayorkas & Garland are the wrong folks) and a competent, legal, humane approach from the Biden Administration. But, unfortunately, you would be wrong!  Dead wrong, in some cases! ☠️⚰️

🇺🇸 Due Process Forever!

PWS

03-18-23

⚖️🗽CREAMED AGAIN! — 1st Circuit Finds Errors Galore In BIA’s Denial Of Withholding To Honduran Woman: Credibility; Corroboration; Following Precedent; CAT Claim! — Molina-Diaz v. Wilkinson

 

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

http://media.ca1.uscourts.gov/pdf.opinions/15-2321P-01A.pdf

Molina-Diaz v. Wilkinson, 1st Cir., 02-25-02

PANEL: Howard, Chief Judge, and Kayatta, Circuit Judge.**Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel’s opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).

ATTORNEYS: Nancy J. Kelly, with whom John Willshire Carrera and Harvard Immigration & Refugee Clinic of Harvard Law School at Greater Boston Legal Services were on brief, for petitioner.

Stratton C. Strand, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas E. Ginsburg, Assistant Director, and Derek C. Julius, Senior Litigation Counsel, were on brief, for respondent.

OPINION BY: Chief Judge Howard

KEY QUOTE: 

Petitioner Olga Araceli Molina- Diaz is a Honduran native and citizen who twice entered the United States without authorization. The government ordered her removed to Honduras, and an immigration judge (“IJ”) denied her subsequent application for withholding of removal (“Application”). Molina appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s order and denied Molina’s motion to reopen and remand. Molina now petitions this court to review the BIA’s decision. Because we agree that the IJ and BIA made legal errors, we grant the petition, vacate the removal order, and remand for further proceedings.

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

Folks, we’re not talking about obtuse principles of international law, complex statutory interpretation, or “cutting edge” legal concepts. No, this is about credibility, corroboration, following your own precedents (even when they might produce a result favorable to the respondent), and adjudicating a CAT claim. 

These are the “bread and butter” of basic asylum and withholding adjudication that is the staple of most Immigration Court dockets. Not rocket science! Yet, once they got below the “caption line,” the BIA, a supposedly “expert tribunal,” got pretty much everything else wrong. With human life at stake, no less!

This isn’t just an “outlier.” It reveals deep systemic problems in a dysfunctional system that has been programmed to cut corners and deny relief. After 21 years as an EOIR Judge at every level, I know an “autopilot denial” when I see one. 

This is clearly the product of a judge and a BIA panel that approached the case with a “we deny almost all Hondurans, it’s just a question of how” attitude. Because “the bottom line got to no,” obviously nobody paid much, if any, attention to what was above it. I suspect that if the staff attorney had drafted this as a grant or a remand, the BIA panel would have given it a more thorough and searching review. 

Following your own precedents isn’t a matter that requires profound knowledge or amazing analytical skills. It just requires some level of basic expertise and an open mind — things that appear to be sorely lacking throughout today’s broken EOIR.

The flawed EOIR approach to claims for asylum and withholding, particularly those involving the Northern Triangle and women, is very costly, not only to the humans involved, but also to our justice system. This respondent reentered the U.S. in 2009, and her merits hearing before the IJ took place in 2012. A careful, proper analysis could well have resulted in a grant at that time. 

Instead, this “plethora of errors,” created by EOIR’s corner cutting and obsession with denying claims, bounced around the system for nearly a decade before being “outed” by the Circuit Court — obviously the only judges involved who took the time to actually analyze the case in accordance with the law, the facts, and the arguments made by counsel. So, after nearly a decade, at three different levels of review, we’re basically back to “square one” with this case.

The case will be returned to the BIA who inevitably will return it to to the IJ for a new hearing that actually complies with the law and due process. Given the total dysfunction in the EOIR system, it’s could easily be around for another decade. 

Getting it right at the first level is critically important in a high volume, yet life determining, system like the Immigration Courts! That’s why it’s so absolutely essential that Judge Garland replace the current BIA and many of the current trial judges with “practical experts;” judges selected on a merit-basis because of their understanding of immigration and human rights laws, demonstrated analytical skills, and who by experience and reputation are overwhelmingly committed to due process, fundamental fairness, treating respondents and their lawyers with respect and dignity, and getting the right result the first time around. “The best and the brightest,” if you will! 

As this case that began well before Trump shows, the deterioration at EOIR has been underway across Administrations over the past two decades. It greatly accelerated and became more acute under Trump. That’s particularly true because “Trump AGs” drastically expanded the Immigration Courts and the BIA (while exponentially increasing the backlog), and now have appointed the majority of judges in the system — after just four years! 

Compare that with the Obama Administration’s practice of taking an mind-boggling average of two years to fill IJ vacancies! And, then filling them almost all with “government insiders and former prosecutors” rather than some of the many renowned “practical scholars,” experienced clinicians, and notable litigators in the private/academic/NGO immigration/human rights sectors. They actually left behind unfilled judicial vacancies for Sessions to “pounce on.” Says all you really need to know about the “priority” of immigrant justice in the Obama Administration. The “good enough for government work” attitude that has replaced “guaranteeing fairness and due process for all” as the “EOIR Vision” needs to go, now!

🇺🇸⚖️🗽Due Process Forever! Achieving it in the Immigration Courts will be the “litmus test” of whether Judge Garland succeeds or fails in his new role as Attorney General! You can’t improve justice for all in America while running a “court system” that denies justice, often ignores the law, mocks due process, eschews best practices and common sense, and routinely disrespects the humanity of those appearing before it! All while running up a stunning 1.3 million case backlog! As Justice Sotomayor would say: “This is not justice!”

PWS

02-26-21

DUE PROCESS/GENDER-BASED ASYLUM WINS: 1st Cir. Slams BIA, Sessions’s Matter of A-B- Atrocity – Remands For Competent Adjudication of Gender-Based Asylum Claim — DE PENA-PANIAGUA v. BARR   

Amer S. Ahmed
Amer S. Ahmed
Partner
Gibson Dunn
NY

DE PENA-PANIAGUA v. BARR, 1st Cir., 04-24-20, published

OLBD OPINION VACATING AND REMANDING

PANEL: Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

OPINION BY: Judge Kayetta

KEY EXCERPTS (Courtesy of Amer S. Ahmed, Esquire, Gibson Dunn, Pro Bono Counsel for the Round Table of Former Immigration Judges as Amici):

[The BIA] added, however, that “[e]ven if [De Pena] had

suffered harm rising to the level of past persecution,” De Pena’s

proposed particular social groups are analogous to those in Matter

of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014), which the BIA

understood to have been “overruled” by the Attorney General in

Matter of A-B, 27 I. & N. Dec. 316, 319 (A.G. 2018). The BIA read

A-B as “determin[ing] that the particular social group of ‘married

women in Guatemala who are unable to leave their relationship’ did

not meet the legal standards to qualify as a valid particular

social group.”

That conclusion poses two questions to be resolved on

this appeal: First, does A-B categorically reject any social group

defined in material part by its members’ “inability to leave” the

relationships in which they are being persecuted; and, second, if

so, is A-B to that extent consistent with the law?

Is it reasonable to read the law as supporting such a categorical

rejection of any group defined by its members’ inability to leave

relationships with their abusers? A-B itself cites only fiat to

support its affirmative answer to this question. It presumes that

the inability to leave is always caused by the persecution from

which the noncitizen seeks haven, and it presumes that no type of

persecution can do double duty, both helping to define the

particular social group and providing the harm blocking the pathway

to that haven. These presumptions strike us as arbitrary on at

least two grounds.

….

 

First, a woman’s inability to leave a relationship may

be the product of forces other than physical abuse. In

Perez-Rabanales v. Sessions, we distinguished a putative group of

women defined by their attempt “to escape systemic and severe

violence” from a group defined as “married women in Guatemala who

are unable to leave their relationship,” describing only the former

as defined by the persecution of its members. 881 F.3d 61, 67

(1st Cir. 2018). In fact, the combination of several cultural,

societal, religious, economic, or other factors may in some cases

explain why a woman is unable to leave a relationship.

We therefore do not see any basis other

than arbitrary and unexamined fiat for categorically decreeing

without examination that there are no women in Guatemala who

reasonably feel unable to leave domestic relationships as a result

of forces other than physical abuse. In such cases, physical abuse

might be visited upon women because they are among those unable to

leave, even though such abuse does not define membership in the group

of women who are unable to leave.

Second, threatened physical abuse that precludes

departure from a domestic relationship may not always be the same

in type or quality as the physical abuse visited upon a woman

within the relationship. More importantly, we see no logic or

reason behind the assertion that abuse cannot do double duty, both

helping to define the group, and providing the basis for a finding

of persecution. An unfreed slave in first century Rome might well

have been persecuted precisely because he had been enslaved (making

him all the same unable to leave his master). Yet we see no reason

why such a person could not seek asylum merely because the threat

of abuse maintained his enslaved status. As DHS itself once

observed, the “sustained physical abuse of [a] slave undoubtedly

could constitute persecution independently of the condition of

slavery.” Brief of DHS at 34 n.10, Matter of R-A, 23 I. & N. Dec.

694 (A.G. 2005).

 

For these reasons, we reject as arbitrary and unexamined

the BIA holding in this case that De Pena’s claim necessarily fails

because the groups to which she claims to belong are necessarily

deficient. Rather, the BIA need consider, at least, whether the

proffered groups exist and in fact satisfy the requirements for

constituting a particular social group to which De Pena belongs.

 

Amer S. Ahmed

GIBSON DUNN

 

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

 

Read the full opinion at the link above.

 

While Judge Kayetta does not specifically cite our Round Table’s brief, a number of our arguments are reflected in the opinion. Undoubtedly, with lots of help from Amer and our other superstar friends over at Gibson Dunn, we’re continuing to make a difference and hopefully save some deserving lives of the refugees intentionally screwed by our dysfunctional Immigration Court system under a politicized DOJ.

Knightess
Knightess of the Round Table

 

I’ve heard of the bogus rationale used by the BIA in this case reflected in a number of wrongly decided unpublished asylum denials by both the BIA and Immigration Judges. This should make for plenty of remands, slowing down the “Deportation Railroad,” jacking up the backlog, and once again showing the “substantial downside” of  idiotic “haste makes waste shenanigans” at EOIR and allowing biased, unqualified White Nationalist hacks like Sessions and Barr improperly to interfere with what are supposed to be fair and impartial adjudications consistent with Due Process and fundamental fairness.

 

Great as this decision is, it begs the overriding issue: Why is a non-judicial political official, particularly one with as strong a prosecutorial bias as Sessions or Barr, allowed to intervene in a quasi-judicial decision involving an individual and not only reverse the result of that quasi-judicial tribunal, but also claim to set a “precedent” that is binding in other quasi-judicial proceedings?  Clearly, neither Ms. De Pena-Paniagua nor any other respondent subject to a final order of removal under this system received the “fair and impartial decision by an unbiased decision-maker” which is a minimum requirement under the Due Process Clause of the Fifth Amendment.

 

Let’s put it in terms that an Article III Circuit Court Judge should understand. Suppose Jane Q. Public sues the United States in U.S. District Court in Boston and wins a judgment. Unhappy with the result, Attorney General Billy Barr orders the U.S. District Judge to send the case to him for review. He enters a decision reversing the U.S. District Judge and dismissing Public’s claim against the United States. Then, he orders all U.S. District Judges in the District of Massachusetts to follow his decision and threatens to have them removed from their positions or demoted to non-judicial positions if they refuse.

 

The First Circuit or any other Court of Appeals would be outraged by this result and invalidate it as unconstitutional in a heartbeat! They likely would also find Barr in contempt and refer him to state bar authorities with a recommendation that his law license be revoked or suspended.

 

Yet this is precisely what happened to Ms. A-B-, Ms. De Pena Paniagua, and thousands of other asylum applicants in Immigration Court. It happens every working day in Immigration Courts throughout the nation. It will continue to happen until Article III Appellate Judges live up to their oaths of fealty to the Constitution and stop the outrageous, life-threatening miscarriages of justice and human dignity going on in our unconstitutional, illegal, fundamentally unfair, and dysfunctional Immigration Courts.

 

Due Process Forever!

 

PWS

04-24-20

 

 

 

1ST CIR. BOPS BIA’S BOILERPLATE DENIAL OF DOCUMENTED WITHHOLDING CLAIM – AGUILAR-ESCOTO V. SESSIONS!

1stCirAsy:WH16-1090P-01A

Aguilar-Escoto v. Sessions, 1st Cir., 10-27-17, published

PANEL: Howard, Chief Judge,Thompson and Kayatta, Circuit Judges.

OPINION BY: Chief Judge Howard

KEY QUOTE:

“We review the BIA’s legal conclusions de novo and its findings of fact under the “substantial evidence” standard, meaning that we will not disturb such findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015) (citation omitted). In our review of the record, we note that while the BIA need not “discuss every piece of evidence offered,” it is “required to consider all

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relevant evidence in the record.” Lin v. Mukasey, 521 F.3d 22, 28 (1st Cir. 2008) (emphasis added). Consistent with this obligation, the Eleventh Circuit has specifically held that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence produced by” an applicant for relief. Hong Chen v. U.S. Att’y Gen., 231 F. App’x 900, 902 (11th Cir. 2007) (citing Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)). Rather, where the applicant provides evidence other than her own testimony, the agency “must consider that evidence” and may not “rely solely on an adverse credibility determination.” Forgue, 401 F.3d at 1287. According to the Eleventh Circuit, the agency’s failure to fulfill this duty is grounds for vacating the BIA decision, irrespective of the merits of the adverse credibility finding. See Toska v. U.S. Att’y Gen., 194 F. App’x 767, 768 (11th Cir. 2006); see also Khattak v. Holder, 704 F.3d 197, 208 (1st Cir. 2013) (“[W]e will remand if the agency fails to state with sufficient particularity and clarity the reasons for denial of [relief] or otherwise to offer legally sufficient reasons for its decision.” (citation omitted)).

We agree with the Eleventh Circuit’s approach to this issue, which is consistent with our precedent. See Rasiah v. Holder, 589 F.3d 1, 6 (1st Cir. 2009) (“An adverse credibility finding by itself would not automatically doom a claim for asylum.”). The appropriate result in this case follows easily.

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Even assuming that its credibility ruling was supportable, the BIA was required to go further and address whether, setting Aguilar’s testimony to one side, the documentary evidence entitled her to relief. See Lin, 521 F.3d at 28; Forgue, 401 F.3d at 1287. Indeed, the IJ expressly recognized that this documentary evidence, if believed, was sufficient to establish multiple acts of domestic violence against Aguilar by her ex-husband. In these circumstances, the BIA’s failure to consider or even acknowledge the evidence requires remand. See Toska, 194 F. App’x at 768; Khattak, 704 F.3d at 208. We take no position on the merits of the IJ’s holding that the abuse reflected in the documentary evidence was not sufficiently severe to warrant relief. This issue is best left to be addressed by the BIA in the first instance.

We note, for the benefit of the agency on remand, that the Board’s failure to consider Aguilar’s documentary evidence may have been rooted in its fundamental misunderstanding of her claim. Again, the Board appears to have operated under the mistaken assumption that Aguilar had applied for asylum as well as withholding of removal. These two grounds for relief are not identical. For one thing, withholding of removal requires a higher likelihood of persecution than asylum. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (noting that applicants for withholding must satisfy a “more likely than not” standard (citation omitted)). There is, however, a different sense in which

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the asylum standard may be more exacting. Withholding claims “lack a subjective component and are [thus] concerned only with objective evidence of future persecution.” Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987) (explaining that the relevant statutory language “has no subjective component”). Asylum, by contrast, has both a subjective and an objective component: it requires a showing that the applicant “genuinely fears persecution,” in addition to proof that the “fear is objectively reasonable.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). Applicants “typically” seek to establish the requisite “genuineness” through their “own credible testimony.” Id. at 80-81. An adverse credibility finding thus may prove fatal to this aspect of an asylum claim. But, because withholding of removal requires no such genuine belief, a withholding claim “may, in appropriate instances, be sustained” despite an adverse credibility finding. Paul, 444 F.3d at 156.

In the present case, the BIA may well have been justified in concluding that, absent her own credible testimony, Aguilar failed to establish a subjectively genuine fear that she would be persecuted upon returning to Honduras. This failure would doom an asylum claim notwithstanding additional evidence establishing that a reasonable person in Aguilar’s circumstances would have feared persecution. See Makhoul, 387 F.3d at 80-81. But, in the withholding context, the inquiry is a strictly objective one. See

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Cardoza-Fonseca, 480 U.S. at 430-31. Thus, even after discrediting Aguilar’s testimony, arguably the only evidence that she did in fact harbor a subjective fear of persecution, the BIA was nonetheless obliged to consider documentary evidence potentially capable of establishing her likelihood of suffering further abuse.

Rather than embarking on this objective assessment, the BIA fell back on the familiar refrain that, because “the applicant did not establish eligibility for asylum, it follows that she cannot establish eligibility for withholding of removal, which has a higher burden of proof.” Such a conclusion is unassailable where the applicant’s subjective fear is proven or assumed, and the denial of the asylum claim turns on the lack of evidence that the fear was objectively reasonable. See, e.g., Makhoul, 387 F.3d at 81. But the same is not necessarily true where an asylum claim fails due to a lack of credible testimony establishing the applicant’s subjective fear. The Board’s failure to apply the appropriate, purely objective standard to Aguilar’s withholding claim provides an independent basis for remand. See Kozak v. Gonzáles, 502 F.3d 34, 38 (1st Cir. 2007) (remanding because “the BIA applied an inappropriate legal standard”); Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007) (remanding “to allow the matter to be considered anew under the proper legal standards”).

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III.
For the foregoing reasons, we VACATE the BIA’s order

dismissing Aguilar’s appeal and remand for further proceedings consistent with this opinion.”

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You can read the complete opinion at the link

This type of reversal does not involve a “Chevron-type” legal policy issue where the BIA and the Article IIIs might well reach different conclusions. Rather, this case is all about the BIA misapplying the “fundamental nuts and bolts” of credibility and withholding analysis in putting out a “boilerplate denial.” Why should the Article IIIs be finding “mechanical-analytical” issues that the expert BIA missed? Perhaps the EOIR system is “peddling too fast.” In that case, Sessions’s proposed “production quotas for judges” are the absolute worst thing that could happen to the Immigration Courts and Due Process.

Also, if the Article IIIs are better than the BIA at the basics of immigration and asylum law, why shouldn’t the Article IIIs, not the BIA, be getting “Chevron deference?”