USE WITH EXTREME CAUTION! — HON. JEFFREY CHASE ON THE USE OF SO-CALLED AIRPORT STATEMENTS IN REMOVAL PROCEEDINGS — They Often Prove To Be Highly Unreliable!

https://www.jeffreyschase.com/blog/2017/9/21/the-reliability-of-airport-statements-in-removal-proceedings

Jeffrey writes in his blog:

“In August 2016 I organized and moderated the mandatory international religious freedom training panel at the immigration judges’ legal training conference in Washington, D.C. One of the panelists from the U.S. Commission on International Religious Freedom (“USCIRF”) informed me of a just-published report she had co-authored.

The report, titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, is the follow-up to a 2005 study by USCIRF of the treatment of arriving asylum seekers in their interactions with the various components of DHS and the Department of Justice involved in the expedited removal process. What jumped out at me from the report was the first key recommendation to EOIR: “Retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

The new report referenced the Commission’s 2005 findings, which it described as “alarming.” The earlier study found that “although they resemble verbatim transcripts, the I-867 sworn statements” taken from arrivees by agents of DHS’s Customs and Border Patrol (“CBP”) component “were neither verbatim nor reliable, often indicating that information was conveyed when in fact it was not and sometimes including answers to questions that were never asked. Yet immigration judges often used these unreliable documents against asylum seekers when adjudicating their cases.”

The 2016 report found similar problems with the airport statements taken a decade later. The study found the use of identical answers by CBP agents in filling out the form I-867 “transcript,” including clearly erroneous answers (i.e. a male applicant purportedly being asked, and answering, whether he was pregnant, and a four year old child purportedly stating that he came to the U.S. to work). For the record, USCIRF is a bipartisan organ of the federal government. So this is a government-issued report making these findings.”

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Read the rest of Jeffrey’s analysis at the above link.

Too bad that the Trump Administration has eliminated Annual Immigration Judge Training! With a bunch of new Immigration Judges on board and the push to rubber stamp removals as quickly as possible to comply with the President’s Executive Orders on Enforcement, I guess there is no time for training in how to make correct decisions.

In fact, when judges have enough experience to know what’s really happening and are able to selectively regulate the speed of cases to make sound decisions and achieve due process, they find out that there are lots of problems in how the DHS prepares and presents cases, not all of which immediately meet the eye.

To state the obvious, how would an unrepresented respondent in detention get together the necessary Circuit Court case law to learn and effectively challenge unreliable airport statements introduced by DHS Counsel? How would he or she subpoena Immigration Officers or get documentation necessary to show that many airport statements are prepared by rote with exactly the same information in the same language. Mistakes as to age, gender, and “best language” of applicants are common, suggesting that the reports too often have little to do with the actual facts of a particular case.

Short answer, they wouldn’t! As a result, the chances of the Imigration Judge using unreliable information to reach an incorrect decision against the respondent greatly increase.

And their use in the “kangaroo court” procedure known as “Expedited Removal” where enforcement officers make the decisions is prima facile problematic. Someday, all of the Article III Judges who have turned a blind eye to this unconstitutional procedure will have their judicial records forever tarnished in the light of history.

No wonder this Administration likes to detain individuals in out of the way locations (where conditions are coercive and lawyers are not readily available) to make their removal stats look good. And, while most Immigration Judges are conscientious, without a good lawyer to help pick apart the weaknesses and inaccuracies that are often in airport statement, invoking concepts drawn from Federal case law, the possibility of an incorrect or unjust decision is much greater.

We need an independent Article I U.S. Immigraton Court whose sole objective is achieving due processs and making correct legal decisions. And, that would include providing regular in person judicial training from a wide range of sources, including academic experts and those with litigation experience outside the government, on how to fairly evaluate evidence. It would also include a focus on insuring that every individual who goes to a “Merits Hearing” in Immigraton Court has a fair chance to be represented by counsel and reasonable access to his or her lawyer and the evidence and resources necessary to prepare a successful case.

PWS

09-22-17

9TH CIR SAYS DEPARTURE DOES NOT AUTOMATICALLY WAIVE BIA APPEAL: CHAVEZ-GARCIA V. SESSIONS

14-72172

Chavez-Garcia v. Sessions, 9th Cir., 09-21-17 (published)

Before: S. Jay Plager,* Carlos T. Bea, and John B. Owens, Circuit Judges.

Opinion by Judge Bea; Dissent by Judge Owens

* The Honorable S. Jay Plager, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation.

KEY QUOTE:

“As a general rule, ignorance of the law is no excuse[.]” Antonio–Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003) (citing Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)). Therefore, one might conclude that Chavez–Garcia validly waived his right to appeal when he departed from the United States because of the mere existence of the departure-waiver regulation coupled with the fact that Chavez–Garcia was represented by counsel during and after his removal proceedings. Our precedent suggests otherwise. Even though regulations that interpret the INA expressly state that an alien may appeal his removal order to the BIA, the Ninth Circuit does not treat an alien’s waiver of his right to appeal as valid unless the IJ “expressly and personally inform[s] the alien that he has the right to appeal.” See Ubaldo–Figueroa, 364 F.3d at 1049; see also 8 C.F.R. § 1003.38(a). By that same logic, even though the departure-waiver regulation expressly states that an alien’s departure constitutes a waiver of his right to appeal to the BIA, an IJ must inform an alien who requests immediate removal that his departure would constitute a waiver of his right to appeal. See Garcia, 786 F.3d at 792 (holding in a slightly different context that “an alien’s waiver of his right to appeal” was not “considered and intelligent” because “the IJ fail [ed] to advise [him]” of information relevant to the future outcome of his case). Without the information that his departure would constitute a waiver of appeal, conveyed from the IJ to the alien, the IJ has no way to know whether an alien’s departure alone qualifies as a “considered” and “intelligent” waiver of his right to appeal his removal order. See Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800, 806 (9th Cir. 2004) (holding that a petitioner’s due process rights were violated after the IJ failed to inform the petitioner when she reserved her right to appeal that her departure from the United States during her pending appeal to the BIA would constitute a waiver of her right to appeal under 8 C.F.R. § 1003.4). We grant Chavez–Garcia’s petition for review because his departure from the United States, without more, does not provide clear and convincing evidence of a “considered” and “intelligent” waiver of the right to appeal. See United States v. Gomez, 757 F.3d 885, 894 (9th Cir. 2014) (“The government must prove a valid waiver ‘by clear and convincing evidence.’ ”) (quoting United States v. Reyes–Bonilla, 671 F.3d 1036, 1043 (9th Cir. 2012)).8 The IJ’s failure to inform Chavez–Garcia that his departure would constitute a waiver of his previously reserved right to appeal to the BIA renders Chavez–Garcia’s purported waiver invalid. Therefore, his petition is granted. The case is remanded for further proceedings before the BIA.


PETITION GRANTED; REMANDED.”

Here’s Judge Owens’s Dissent:

“OWENS, Circuit Judge, dissenting:

I respectfully dissent. In my view, the February 12, 2013 letter from Chavez–Garcia’s own lawyer—which asked for his immediate removal and stated that Chavez–Garcia did “not intend to appeal” the IJ’s decision—supports the BIA’s decision to dismiss the appeal on waiver grounds.”

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

Interesting case. I think the panel majority got this one right. That being said, although I gave pretty extensive appeals warnings, I don’t remember ever warning a respondent about the consequences of departure unless asked by the respondent or the attorney. But, it wouldn’t have been hard to add that to my “standard language.”

And, I  don’t really see the harm in considering the appeal. Here, the BIA’s decision to go with the appeal waiver actually caused more delay and time spent on a systemic basis than adjudicating the appeal on the merits would have.

As I used to say, in the time and energy some Immigration Judges wasted on complicated decisions to deny motions to reopen, I could have reopened the case, held a merits hearing, and adjudicated it on the merits in a way that probably would not have been appealed. “Practical judging” makes sense in a system with more than 600,000 pending cases and not a clue as to how to fairly deal with the backlog.

PWS

09-22-17

 

 

BIA SETS FORTH FACTORS FOR EVALUATING DELAYED BIRTH CERTIFICATES: MATTER OF REHMAN, 27 I&N DEC. 124 (BIA 2017)

3903

BIA HEADNOTE:

”Where a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an adjudicator must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence.”

BIA PANEL:  Judge Adkins-Blanch, Vice Chair; Appellate Immigration Judges Mann and Kelly

OPINION BY: Judge Ana L. Mann

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

The point of this decision is that in dealing with a non-contemporaneous birth certificate (here in the context of a Visa Petition Proceeding, but the issue also arises in Removal Proceedings) the adjucdicator cannot reject it as probative evidence simply because it was not contemporaneous. The adjudicator must examine all the factors in weighing the certificate, including factors indicating reliability.

Here, the BIA correctly rejected the Director’s phantom “one-year rule” that automatically required the submission of “secondary evidence” if the birth certificate was issued one year or more after the birth.

PWS

09-22-17

NEWSWEEK REPORTS TRUMP ADMINISTRATION PLANNING MASSIVE ASSAULT ON RIGHTS OF UNDOCUMENTED TEENS ADMITTED UNDER THE WILBERFORCE ANTI-TRAFFICKING ACT!

http://www.newsweek.com/trump-administration-weighs-deporting-thousands-unaccompanied-child-migrants-668778

Graham Lanktree reports:

“The Trump administration is drafting a new policy to quickly deport more than 150,000 child migrants from Central America who arrived alone in the U.S. illegally, creating a new class of undocumented migrants.

The Department of Justice and Homeland Security is drawing up a policy proposal in a series of memos, according to two sources with knowledge of the internal debate who spoke to the Miami Herald.

As it stands, the plan would allow for teens and children who arrived in the U.S. illegally by themselves to be put on a fast track to deportation when they turn 18. Most of these children have traveled thousands of miles alone from Central American countries, including Honduras, El Salvador, and Guatemala, to escape violence and poverty.

The policy wouldn’t allow the teens to plead their case before an immigration judge.

The discussions follow controversy within the government about Deferred Action for Childhood Arrivals program, known as DACA, a program implemented by Barack Obama, which protects children brought to the country illegally by their parents from deportation.

Speaking about the new policy plans, a former U.S. Justice Department official told the Herald, “The concern is that most people at DOJ know this will likely be viewed as illegal and do not want to have to defend this in court if they can avoid it.”

Current law “doesn’t give the administration a lot of flexibility with how to deal with unaccompanied children,” said a U.S. official familiar with the internal debate about the policy. “This administration still has its hands somewhat tied with what it can do with that population,” that person said.

. . . .

The new policy around unaccompanied children is part of the Attorney General’s efforts to avoid creating a another protected group of illegal immigrants like those under DACA, the Herald’s sources said.

The arrival of unaccompanied children and families from Central America peaked in 2014. In the year between October 1, 2013 and September 30, 2014 U.S. Customs and Border Protection (CBP) says it encountered 67,339 unaccompanied children.

At the height of the influx in June 2014, 27,000 people, including unaccompanied children and families, crossed the U.S.-Mexico border. Three months later the number dropped below 5,000 following crackdowns by the U.S. and Mexico governments.

More than 150,000 children have been referred by Homeland Security to the Office of Refugee Resettlement since that time. The program cares for unaccompanied children after they are caught at the border by officials and either places them in shelters, with sponsors, or relatives in the U.S.

About 63 percent and 73 percent of the unaccompanied youth who arrive at the border are between 15 and 17 years old, making a large group of those who are in the U.S vulnerable to deportation if the administration moves ahead with the policy.

“For a growing population of migrants deported from Mexico and the United States to Central America, the conditions upon return typically are worse than when they left, setting up a revolving-door cycle of migration, deportation, and remigration,” according to the nonprofit Migration Policy Institute. The group advocates better programs to reintegrate those who are deported to their home country.

If the Trump administration decides to move ahead with the policy proposal it will it will likely meet similar opposition to Trump’s travel ban on people coming to the U.S. from six Muslim-majority nations. Elements of the ban have been blocked by federal courts and a legal case against the policy will be heard in the U.S. Supreme Court this fall.

The new policy on unaccompanied minors could be blocked by the courts almost immediately, said Leon Fresco, the former head of the Office of Immigration Litigation at the Justice Department during the Obama administration.

The question is, Fresco said, “whether the administration wants to add this to the travel ban, sanctuary cities, Byrne Jag grants, and DACA repeal to the issues they would want the Supreme Court to have to decide this year.”

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

Read the complete report at the link.

These kids clearly are entitled to full and fair hearings before U.S. Immigration Judges with full rights of appeal. So, whatever Gonzo Apocalypto has up his sleeve must be clearly illegal.

DOJ career lawyers probably realize that their law licenses, and perhaps their individual freedom, could be at stake for participating in such an illegal operation. It would be nice to think that Sessions could also be held accountable under the law. But, as a high-ranking Government official, he’s likely to escape liability under the current Supreme Court rulings. Besides, Trump (or Pence) would probably pardon him anyway in the tradition of his fellow racist xenophobe “Racist Joe.”

PWS

09-21-17

 

 

 

READ THE FALL 2107 EDITION OF “THE GREEN CARD” FROM THE FBA IMMIGRATION SECTION HERE! — Special Message From Immigration Section Chair Betty Stevens, Esq.!

Here’s The Link:

GC Fall 2017 Final

Among other things, a reprint of my tribute to the late Hon. Juan Osuna is on p. 5. And, check out the picture from the Denver Conference on p. 6! Hope everyone will join us for the May 2018 Immigraton Section Conference in Memphis, TN. It will be spectacular!

Also congrats and best wishes to my good friend (and former Arlington Immigraton Court JLC) Betty Stevens on her election as Section Chair. We all look forward to working with you, Betty!

PWS

09-21-17

ADMINISTRATION TRASHES RULE OF LAW, DENIES DUE PROCESS AT U.S. SOUTHERN BORDER!

Guillermo Cantor writes in Immigration Impact:

“U.S. immigration officials have a long history of overstepping the boundaries of their legal authority and violating the constitutional and other legal rights of migrants at the Southwest border. Allegations of abuse throughout the apprehension, detention, and deportation process are not new; immigrant rights organizations and media outlets have reported on those violations for years.

Deportations in the Dark: Lack of Process and Information in the Removal of Mexican Migrants, a new report released by the American Immigration Council, is the most recent effort to document such violations. The report shows the extent to which U.S. immigration officials prevent migrants in their custody from accessing critical information and processes, which in many cases jeopardizes their chances to access various forms of immigration relief. Specifically, the report examines whether U.S. immigration agents properly inform migrants of their rights, actively obstruct their ability to exercise these rights, coerce or intimidate migrants in their custody, or neglect to provide removal documents to migrants at the time of repatriation.

The study is the result of a collaboration between the Council and the Mexico-based Binational Defense and Advocacy Program (in Spanish, Programa de Defensa e Incidencia Binacional, or PDIB), a Mexican human rights initiative established in 2010 to document abuses perpetrated against repatriated Mexican immigrants during their time in the United States. With staff currently located in three different sites—Nogales, Sonora; Nuevo Laredo, Tamaulipas; and Ciudad Juárez, Chihuahua—PDIB interviews migrants upon deportation to Mexico on an ongoing basis.

Based on new survey data (600 interviews) collected by PDIB between August 2016 and April 2017 and testimonies gathered between August 2016 and May 2017, the study found that migrants are frequently deprived of legally required information, told they cannot contact their consulates, compelled to sign documents they cannot read or understand, threatened with protracted detention, and blocked from applying for asylum and other legal claims.

For example, half of the respondents who signed repatriation documents reported that they were not allowed to read the documents before they signed them; 57.6 percent did not receive their repatriation documents; 43.5 percent were not advised of their right to contact their consulate; more than half (55.7 percent) were not asked if they feared returning home.

This report is perhaps the first attempt to systematically analyze the prevalence of denied access to critical information among migrants in U.S. custody. Some of the issues highlighted here, however, have been raised by advocates and been subject to litigation in the past. One concrete example is the case of immigration agents misleading migrants into waiving their right to a removal hearing by signing for voluntary return.

When immigration authorities deprive migrants of critical information regarding their rights or the opportunity to exercise them, migrants may face unjust deportation and lose the ability to ever seek legal admission or apply for asylum in the future. As the U.S. government promises to institute a new level of immigration enforcement, the behavioral patterns of U.S. immigration authorities highlighted in this report are a source of concern.“

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

This is what Jeff “Gonzo Apocalypto” Sessions’s disingenuous claims about the “Rule of Law” really mean. And, for EOIR to post on its website DOJ propaganda about how ramming through more final orders of removal, many without full due process because individuals were given not given legally sufficient notice of their hearings, were effectively denied their right to counsel, were denied the opportunity to gather documentation necessary for their cases, or were coerced into withdrawing claims or waiving appeals, has something to do with the Imigration Courts’ mission is simply more proof that the current system has become a disgraceful mockery of justice.

America needs an independent Article I Immigration Court, now!

PWS

09-21-17

 

MUST SEE TV FROM PBS: Judge Dana Leigh Marks Explains The Dire Backlogs In U.S. Immigration Courts & Why They Are Becoming Worse Every Day!

http://www.pbs.org/newshour/bb/dire-immigration-court-backlog-affects-lives/

Click the above link to see John Yang of PBS interview United States Immigration Judge Dana Leigh Marks of the U.S. Immigration Court in San Francisco, speaking in her capacity as President of the National Association of Immigration Judges (“NAIJ”).

FULL DISCLOSURE: I am a “retiree member” of the NAIJ.

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

As this interview shows, this problem has been building steadily under the past three Administrations. However, the “gonzo enforcement” policies of the Trump Administration, combined with “ADR” (“Aimless Docket Reschuffling”) caused by poorly planned, and in many cases unneeded, details of Immigration Judges from backlogged “home dockets” to obscure detention centers along the Southern Border in response to Trump’s Executive Orders on enforcement, made worse by constant threats to mindlessly throw DACA individuals and TPS holders into the already overwhelmed system have greatly and unnecessarily aggravated an already bad situation.

Judge Marks points out that nearly 40% of the current U.S. Immigration Judiciary, including all of the most experienced judges, are eligible or nearly eligible to retire. That would mean a whopping 140 new Immigration Judge hires in a short period of time in addition to filling the current approximately 50 vacancies and any other positions that might become available. That adds up to approximately 200 new judicial vacancies, not counting any additional positions that Congress might provide.

No Administration has been able to competently hire that many new judges using a proper merit selection process. Indeed, the last Administration, using a system that could hardly be viewed as ”merit based,” took an astounding average of nearly two years to fill a vacancy on the U.S. Immigration Court! That’s amazing considering that these are administrative judges who do not require Senate confirmation.

The total unsuitability of the U.S. Justice Department to be administering the U.S. Immigration Courts has been demonstrated not only in terns of misuse of the courts for politicized law enforcement objectives, but also in terms of poor planning and stunningly incompetent judicial administration.

We need an independent Article I U.S. Immigration Court, and we need it now!

PWS

09-20-17

 

 

MARK JOSEPH STERN IN SLATE: Rule Of Scofflaws! — Trump, Sessions Have No Regard For Law Unless It Suits Their Disingenuous Purpose!

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/the_trump_administration_s_lawless_attacks_on_sanctuary_cities.html

Stern writes:

“The Trump administration’s latest attempt to punish sanctuary cities hit a snag on Friday when a federal court ruled the Justice Department cannot withhold public safety grants from jurisdictions that refuse to assist federal immigration authorities. Attorney General Jeff Sessions had attempted to prevent cities and states from receiving these funds unless they cooperatedwith immigration officials’ crackdown on undocumented immigrants. The court held that Sessions in fact has no power to attach new restrictions to the grants, rendering most of his new rules unlawful.

Mark Joseph SternMARK JOSEPH STERN

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Friday’s decision marked the second time a court has blocked Sessions’ attempts to penalize sanctuary cities by depriving them of federal grants. It also comes on the heels of a sweeping ruling that froze the most controversial provisions of Texas’ new anti–sanctuary cities bill. Earlier this month, the White House declared that Donald Trump is “restoring law and order to our immigration system.” But in their haste to adopt a restrictionist immigration regime, Trump, Sessions, and their fellow Republicans have shown a consistent disdain for federal statutes and constitutional protections.

Consider Sessions’ latest sanctuary cities imbroglio. In July, the attorney general created new criteria for Byrne Memorial Justice Assistance grants, which dispense hundreds of millions of dollars to state and local law enforcement. Under these rules, jurisdictions would not be eligible for Byrne grants unless they collaborate with Immigration and Customs Enforcement officials. Most pertinent here, law enforcement officials would have to give ICE agents access to local jails and, if the agency is interested in detaining an undocumented immigrant, notify ICE 48 hours before that person is set to be released. Chicago sued, alleging that the new rules were illegal.

Where does Sessions get the authority to impose these conditions on Byrne grants? Nowhere, as Judge Harry D. Leinenweber of the Northern District of Illinois pointed out in his ruling siding with Chicago. The Constitution grants Congress, not the executive branch, authority to impose conditions on federal funding. And Congress has never authorized the Justice Department, which is part of the executive branch, to force Byrne grantees to work with ICE. Sessions simply usurped Congress’ authority to make new rules.

When Chicago sued Sessions over the Byrne conditions in August, the attorney general put out a Trumpian statement asserting that the city “proudly violate[s] the rule of law” by protecting undocumented immigrants. But as Leinenweber explained on Friday, it was Sessions, not Chicago, who was acting lawlessly.

It’s surprising that Sessions would try to meddle with Byrne grants given that his first foray into sanctuary city–bashing failed so spectacularly. In Trump’s first days in office, the president issued an executive order directing the attorney general and Homeland Security secretary to withhold all federal grants and funding from sanctuary jurisdictions. Multiple cities quickly filed suit to defend their sanctuary policies. Sessions’ Justice Department, which apparently realized this order would violate multiple constitutional provisions, told a federal court that in reality, the order was nothing more than a narrow warning to sanctuary cities that the government would enforce current grant conditions.

In April, U.S. District Judge William Orrick blocked the order as an unconstitutional abomination. In his decision, Orrick essentially mocked the Justice Department, writing that he would not accept the DOJ’s “implausible” interpretation as it would transform Trump’s order into “an ominous, misleading, and ultimately toothless threat.” Instead, he analyzed the text of the order and found that it infringed upon constitutional separation of powers; coerced and commandeered local jurisdictions in violation of the 10thAmendment; and ran afoul of basic due process principles.

The White House promptly complained that Orrick “unilaterally rewrote immigration policy for our Nation” in an “egregious overreach.” Ironically, that is almost exactly what Trump had done through his executive order, illegally attaching new conditions to federal funds without congressional approval. Orrick had merely enforced the law; it was Trump who tried to change it unilaterally.

Neither of the Trump administration’s unlawful immigration power-grabs is as startling as SB 4, a Texas bill targeting sanctuary cities that Sessions’ Justice Department has defended in court. Confident in their measure’s legislative success, Texas Republicans turned SB 4 into a compendium of the most draconian possible attacks on sanctuary jurisdictions. The bill compelled local police to enforce immigration law, cooperate with ICE agents, and detain potentially undocumented immigrants; it also censored local officials who wished to speak out against the law. Law enforcement officers who ran afoul of SB 4 would face massive fines, jail time, and removal from office. Government employees who criticized the measure could also be fined and stripped of their positions.”

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

Let’s get this straight: the “rule of law” to Sessions means laws aimed disproportionately at Latinos, Blacks, Muslims, undocumented migrants, non-white immigrants, LGBTQ individuals, ethnic communities, jurisdictions that voted for Democrats, legal marijuana users and businesses, innocent victims of civil forfeitures, and “leakers” (many would say “whistleblowers”) who are career civil servants. In other words law enforcement that in some disturbing ways parallels the “Jim Crow” laws in Alabama and other Southern States to which Sessions would apparently like to return (only with a greater emphasis on targeting Latinos, rather than Blacks, although he has little use for the latter now that the confirmation process is complete during which he “conned” a couple of Blacks into saying he wasn’t a racist.)

I remember from my youth hypocritical Southern racists like George Wallace asserting the false mantle of “the rule of law” and “states rights” for enforcing blatantly discriminatory racial laws while stomping on the actual legal and constitutional rights, and often lives, of Black citizens. Sessions has little or no intention of enforcing laws relating to civil rights protections, voting rights, protections for LGBTQ individuals, protections against local police abuses, due process for migrants in and outside of the U.S. Immigration Court process, environmental protection, constitutional conditions of detention, and ethics. Sessions is clearly a liar, if not a perjurer (which he might be) under legal definitions.

We should all be concerned that this totally unqualified and disingenuous individual has been put in charge of the U.S. justice system. I’ve commented earlier on the glaring unsuitability of individuals like Greg Abbott and Ken Paxton to be governing a state with a significant Hispanic population.

And, Stern’s article didn’t even raise Trump’s greatest and most audacious abuse of the rule of law: his totally unjustified and inappropriate abuse of the Presidential Pardon authority by pardoning the unrepentant, unapologetic “Racist Joe.” Think about what “Racist Joe” stands for, as described by a U.S. District Judge who found him guilty of contempt of court after trial for his continuing, knowing, and intentional abuses of the constitutional rights of Latino citizens and prisoners, among others. In what way does “Racist Joe” deserve a pardon? How would you feel if you were a Hispanic citizen or a detainee who had his or her constitutional rights intentionally violated and was victimized by this arrogant, bullying, racist? The innocent suffer while the guilty go unpunished. What kind of “rule of law” is that?

Then think of all the GOP “politicos” who “palled around” with “Racist Joe” and his toxic sidekick Kris Kobach and even sought their endorsements! That’s because it would help with the racist, White Supremacist “core vote” that has allowed the GOP to gain control of much of the U.S. governing structure notwithstanding the party’s extremist views and generally destructive agenda.

This is very reminiscent of how the “White Southern racist base” helped the Democrats maintain a stranglehold on government for the bulk of the mid-20th Century. Assume that the “Trump base” is 20% of the electorate and only 15% fit my foregoing description. That means without the racist White Supremacist vote, the GOP and Trump would have polled  around 31% of the popular vote, not enough to win even with the idiosyncrasies of our electoral system that favor the GOP minority!

PWS

09=19-17

DOUBLE WHAMMY: BIA “BRAND X’s” Ninth Circuit On Material Misrepresentation & Extrajudicial Killings — Effectively Overrules Article III’s Interpretation! — Matter of D-R-, 27 I&N Dec. 105 ( BIA 2017)!

https://www.justice.gov/sites/default/files/pages/attachments/2017/09/14/3902_0.pdf

PANEL:  BIA Appellate Immigration Judges Grant, Malphrus, Mullane

OPINION BY: Judge Malphrus

HEADNOTES:

“(1) A misrepresentation is material under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when it tends to shut off a line of inquiry that is relevant to the alien’s admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), not followed.

(2) In determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider (1) the nexus between the alien’s role, acts, or inaction and the extrajudicial killing and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing. Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), not followed.”

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

Chief Justice John Marshall must be turning over in his grave at how with Chevron and Brand X the Supremes have turned the judicial authority of the United States over to administrative judges within the Executive Branch. Why have an Article III Judiciary at all if it is too timid, afraid, or unqualified to rule on questions of law?

PWS

09-18-17

 

 

 

“INEXCUSABLE OMISSIONS” — 4th Cir. Slams BIA For Unjustified Denial Of Family-Based Gang Threat Asylum Claim From El Salvador — BIA’s Shoddy Factual & Legal Analysis Of “One Central Reason” Exposed — ZAVALETA-POLICIANO v. SESSIONS!

1612

ZAVALETA-POLICIANO v. SESSIONS, 4th Cir., as amended 09-18-17 (Published)

PANEL:  GREGORY, Chief Judge, WILKINSON, Circuit Judge, and DAVIS, Senior Circuit Judge

OPINION BY:  Chief Judge Gregory

KEY QUOTE:

“We hold that the BIA abused its discretion in affirming the IJ’s clearly erroneous factual finding. To start, the IJ unjustifiably relied on the fact that the threatening notes themselves did not explain why Zavaleta Policiano was targeted. As this Court recently explained, the single-minded focus on the “articulated purpose” for the threats while “failing to consider the intertwined reasons for those threats” represents “a misapplication of the statutory nexus standard.” Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017). It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone. The IJ’s heavy reliance on the fact that El Salvadoran gangs target various groups of people in the country was similarly misguided. That “the criminal activities of MS-13 affect the population as a whole,” we have explained, is simply “beside the point” in evaluating an individual’s particular claim. Crespin-Valladares, 632 F.3d at 127.

More fundamentally, the IJ and BIA failed to appreciate, or even address, critical evidence in the record. It is this Court’s responsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009). The IJ did discuss the threatening notes (although while drawing unwarranted conclusions, as discussed above). But the IJ failed to address, or to assign any weight to, the significant body of unrebutted, indeed, undisputed, probative evidence giving meaning and context to the threatening notes: (1) Zavaleta Policiano and her father’s stores, as well as their familial relationship, were well-known in the community; (2) MS-13 threatened Zavaleta Policiano several times by phone; (3) Zavaleta Policiano’s statement that MS-13 “threatened me because my father had left;” and (4) the threats against Zavaleta Policiano began immediately after her father fled to Mexico. These are inexcusable omissions in the agency’s analysis.

The Government asks us to reject much of the overlooked evidence, characterizing it as Zavaleta Policiano’s “subjective beliefs [] as to the gangs’ motives.” Appellees’ Br. 22–23. This argument does not explain away the IJ’s and BIA’s wholesale failure to discuss the evidence, however. See Ai Hua Chen v. Holder, 742 F.3d 171, 179 (4th Cir. 2014) (explaining that the IJ and BIA must “offer a specific, cogent reason for rejecting evidence” (quoting Tassi, 660 F.3d at 720)). What is more, Zavaleta Policiano’s affidavit includes much more than her “subjective beliefs”—it contains key evidence of the context, nature, frequency, and timing of the gang’s threats against her and her family. By stipulating to the credibility and veracity of the affidavit, the Government forwent the opportunity to probe and weaken the evidentiary basis of Zavaleta Policiano’s claims.

When considering the unchallenged record evidence, we are compelled to conclude that Zavaleta Policiano’s familial relationship to her father was “at least one central reason” MS-13 targeted and threatened her. The evidence shows that MS-13 explicitly threatened to kill Zavaleta Policiano’s father and his family if he did not pay the extortion demands, and that “[i]mmediately after” he fled El Salvador, the gang began threatening Zavaleta Policiano. A.R. 210. The timing of the threats against Zavaleta Policiano is key, as it indicates that MS-13 was following up on its prior threat to target Barrientos’s family if he did not accede to the gang’s demands. This explanation appears especially probable given the absence of record evidence that Zavaleta Policiano was ever threatened before her father’s departure. Beyond the timing, Zavaleta Policiano’s affidavit outlines the well-known relationship between the two businesses and the Policiano family, and contextualizes her statement that she was threatened because her father left. And just as MS-13 threatened Zavaleta Barrientos and his children, the gang threatened Zavaleta Policiano and her children, suggesting a pattern of targeting nuclear family members. The totality of this undisputed evidence demonstrates that Zavaleta Policiano was persecuted on account of her family membership.

We add that the BIA’s attempt to distinguish our precedent is unpersuasive. The BIA found, in a single sentence without any analysis, that Zavaleta Policiano’s claim is distinct from the one at issue in Hernandez-Avalos. A.R. 4 (mentioning Hernandez- Avalos, 784 F.3d at 949–50). But that decision actually bolsters Zavaleta Policiano’s position. There, the BIA denied asylum to a mother who was threatened by an El Salvadoran gang after she refused to allow her son to join the gang. The BIA held that the mother was not threatened on the basis of familial ties, but rather “because she would not consent to her son engaging in a criminal activity.” Hernandez-Avalos, 784 F.3d at 949 (citation omitted). In other words, the BIA determined that the gang’s threats against the mother were motivated by its desire to recruit the son. This Court rejected that “excessively narrow reading of the requirement that persecution be undertaken ‘on account of membership in a nuclear family.’” Id. We instead found that the nexus requirement was satisfied, explaining that the mother’s relationship “to her son is why she, and not another person, was threatened with death if she did not allow him to join [the gang].” Id. at 950. The same logic applies here. MS-13 warned Zavaleta Barrientos that it would target his family if he did not pay the extortion demands, and the gang in fact threatened Zavaleta Policiano immediately after her father left. Zavaleta Policiano’s relationship to her father is why she, rather than some other person, was targeted for extortion.

For all the reasons outlined above, we conclude that the BIA erred by affirming the IJ’s clearly erroneous finding. Zavaleta Policiano was not required to prove that the gang’s threats were “exclusively” motivated by her family ties—such “a requirement defies common sense.” See Cruz, 853 F.3d at 130. She only needed to show that the relationship with her father was “at least one central reason” MS-13 threatened her. Because Zavaleta Policiano made this showing, we find the BIA decision to be manifestly contrary to law and an abuse of discretion. See Hernandez-Avalos, 784 F.3d at 953 n.10. By establishing that she was persecuted on account of her family membership, Zavaleta Policiano has satisfied the first two requirements of her asylum claim.”

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Read the complete decision at the above link.

“Inexcusable” describes how the Immigration Courts under the BIA’s defective leadership are skewing facts and law to deny protection to Central American refugees. Not everyone can get a great lawyer like Tamara Jezic, and not every Circuit Court is as conscientious as this Fourth Circuit panel. That means that many of those Central Americans being railroaded through the system by DHS and EOIR are being improperly denied protection.

How can Federal Courts including the Supremes justify continuing to give “deference” to an appellate body that possesses neither expertise in the law nor care in reviewing records? It’s clear that BIA appellate review has become highly politicized and biased against asylum seekers. How much more of this nonsense are the Federal Courts going to put up with?

It also appears that the term “excessively narrow reading” is a perfect description of the BIA’s recent precedent in  Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), in which the BIA tortured the law to come up with a way of denying most family-based claims. Will the Fourth Circuit “call out” the BIA on this attempt to evade the law by denying family-based asylum claims?

We need an independent Article I Immigration Court!

Thanks and congratulations to respondent’s attorney Tamara Jezic for alerting me to this important decision.

PWS

09-18-17

 

 

IMMIGRATIONPROF: Dean Kevin Johnson Gives Us The Supreme’s “Immigration Lineup” For Oct. 2107 — It’s Much More Than Just The Travel Ban!

http://lawprofessors.typepad.com/immigration/2017/09/sessions-v-dimaya-oral-argument-october-2-jennings-v-rodriguez-oral-argument-oct-3-trump-v-intl-refugee-assistance-p.html

Dean Johnson writes:

”The Supreme Court will hear four oral argument in four cases in the first two weeks of the 2017 Term. And the cases raise challenging constitutional law issues that could forecever change immigration law. Watch this blog for previews of the oral arguments in the cases.

Sessions v. Dimaya, Oral Argument October 2. The U.S. Court of Appeals for the Ninth Circuit, in an opinion by the liberal lion Judge Stephen Reinhardt, held that a criminal removal provision, including the phrase “crime of violence,” was void for vagueness.

Jennings v. Rodriguez, Oral Argument, October 3. The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, found that the indefinite detention of immigrants violated the U.S. Constitution.

Dimaya and Jennings are being re-argued, both having originally been argued before Justice Scalia. One can assume that the eight Justice Court was divided and that Justice Gorsuch may well be the tiebreaker.

The final two immigration cases are the “travel ban” cases arising out of President Trump’s March Executive Order:

Trump v. Int’l Refugee Assistance Project. Oral Argument October 10.

Trump v. Hawaii. Oral Argument October 10.”

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Go on over to ImmigrationProf Blog at the above link where they have working links that will let you learn about the issues in these cases.

PWS

09-18-17

THE GIBSON REPORT FOR 09-18-17

GIBSON REPORT 09-18-17A

 

HEADLINES:

TOP UPDATES

SCOTUS Immigration Cases This Term
· Sessions v. Dimaya, Oral Argument October 2.
· Jennings v. Rodriguez, Oral Argument, October 3.
· Trump v. Int’l Refugee Assistance Project. Oral Argument October 10.
· Trump v. Hawaii. Oral Argument October 10.
· In travel-ban case, justices stay Ninth Circuit ruling

NY Governor Issues Executive Order Restricting Inquiry Into Immigration Status
ImmProf: “New York Governor Andrew M. Cuomo has issued Executive Order 170 that prohibits state agencies and officers from inquiring about or disclosing an individual’s immigration status unless required by law or necessary to determine eligibility for a benefit or service. Law enforcement officers will also be prohibited from inquiring about immigration status unless investigating illegal criminal activity.”

Trump Administration Loses Again in “Sanctuary City” Funding Case
ImmProf: “In a ruling with national impact, a federal judge in Chicago on Friday blocked the Trump administration’s rules requiring so-called sanctuary cities to cooperate with immigration agents in order to get a public safety grant.”

The Administration Is Late on Sudan/South Sudan TPS
CNN: “The Department of Homeland Security is overdue for a decision about Sudan and South Sudan; there are 1,039 temporarily protected immigrants from Sudan in the United States and 49 from South Sudan, according to data provided by US Citizenship and Immigration Services. Their status is set to expire November 2, and federal law requires a decision 60 days before the deadline and timely publication of that decision.”

ICE Wants to Destroy Its Records of In-Custody Deaths, Sexual Assault, and Other Detainee Files
The Nation: “In July, the National Archives and Records Administration (NARA)—the agency charged with maintaining records produced by the federal government—published a request made by Immigrations and Customs Enforcement (ICE) to begin destroying detainee records, including those related to in-custody deaths, sexual assault, and the use of solitary confinement. The request has been preliminarily approved.” The request predates the current administration.

Drastic drop in US admissions is bad news for Muslim refugees
Frelick: “This August, just 913 refugees were resettled into the U.S., the smallest monthly total in 15 years, according to the State Department’s refugee database.
The religious identity of refugees resettled to the United States also shifted dramatically.”

ICE Confirms Deportation Officers Arrested Four At Brooklyn Courthouse
Gothamist: “Three plainclothes agents with Immigration and Customs Enforcement entered Brooklyn Criminal Court on Thursday morning, “lurked,” and made multiple arrests outside, according to attorneys with Brooklyn Defender Services [BDS], a public defender organization.”

CALLS TO ACTION

· Monday September 25th a DACA Day of Action: AILA and NYLS Pro Bono DACA Renewal Clinic Volunteer Sign-Up link.

· Four Easy Ways to Advocate for the Dream Act

· Tell Congress to Stand Up for Refugee Resettlement: Right now, the Trump administration is deciding how many refugees we welcome into the United States next fiscal year.

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PWS

09-18-17

5TH CIR BONKS BIA: Misdemeanor Evading Arrest Under Texas Penal Code § 38.04 (2011) Is NOT A CIMT! — Laryea v. Sessions

-5thCIMT

Laryea v. Sessions, 5th Cir., 09-12-17 (unpublished — sadly)

PANEL:

DAVIS, GRAVES, and COSTA, Circuit Judges.

PER CURIAM

KEY QUOTE:

“Here, examining the record of conviction, Laryea was convicted of a Class A misdemeanor, which does not involve flight using a vehicle. We hold that fleeing from a police officer, without more, does not rise to the level of moral turpitude because it is not “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”21 Therefore, we find that the conduct involved in Laryea’s offense, “intentionally flee[ing] from a person he knows is a peace officer

attempting lawfully to arrest or detain him,” is not a CIMT.”

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

The standard for crimes involving moral turpitude seems to me to be completely subjective and highly arbitrary. Hard to see how it passes constitutional muster, but it has, over many years. Interestingly, it appears that this Respondent was able to file his own petition for review. I wonder if he had “informal help.”

PWS

09-14-17

 

 

THE HILL: N. RAPPAPORT SUGGESTS LEGISLATIVE SOLUTIONS FOR LONG-TERM “TPSers!”

http://thehill.com/opinion/immigration/350668-with-dreamers-out-bring-immigrants-under-temporary-protection-status-in

Nolan writes:

“The Temporary Protected Status program (TPS) provides refuge in the United States to more than 300,000 aliens from a total of 13 countries: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and Yemen.

They are supposed to leave when it is safe for them to return to their own countries, but it can take many years for conditions in their countries to improve. The need for TPS can last for decades.

It does not include a path to permanent resident status, but should aliens who have lived in the United States for decades be required to leave when their TPS is terminated?

Rep. Zoe Lofgren (D-Calif.) says that at some point they have been here so long that they should be allowed to remain permanently: “There should be some rational way to transition people who have been here for a long time … who because of the length of their stay have basically become valued members of our community.”

. . . .

An alien is free to apply for other types of immigration status while he has TPS.

So, should congress make permanent resident status available to TPS aliens when conditions in their countries keep them here an exceptionally long time?

I agree with Lofgren that at some point, TPS aliens have been living here so long that it no longer makes sense to send them back to their own countries.

The best solution would be to change the TPS provisions to make some form of permanent status available when aliens are forced to remain for exceptionally long times because conditions in their countries do not improve, but that might not be possible.

One of the TPS provisions imposes a limitation on consideration in the Senate of legislation to adjust the status of aliens who have TPS. It provides that it shall not be in order in the Senate to consider any bill or amendment that provides for adjustment to lawful temporary or permanent resident status for TPS aliens, or has the effect of amending the TPS provisions in any other way.

This restriction can be waived or suspended with an affirmative vote from three-fifths of the senators, which is known as a “supermajority vote.”

But there is an alternative that would not require changing the TPS provisions.

The Registry legalization program, which was established in 1929, makes lawful permanent resident status available to qualified aliens who entered the United States before January 1, 1972; have resided in the United States continuously since such entry; and have good moral character.

An update of the registry cutoff point is long overdue. It has not been changed since it was set at 1972, by the Immigration Reform and Control Act of 1986 (IRCA).

The change would apply to all undocumented aliens who can meet the eligibility requirements.”

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

Read Nolan’s complete article, which contains a very succinct and helpful explanation of TPS which I omitted above, over at The Hill.

I think that Nolan has hit it on the head here! There is virtue in using existing administrative processes to deal with new issues. And, as he points out, “Registry” is there for the taking, and it’s been 30 years since it was updated!

Recollection: Understandably, we didn’t see very many “Registry” cases during my tenure at the Arlington Immigration Court (2003-16). But the rare ones we did receive always received “waivers” of the “no business at lunch rule” because they always involved such interesting human stories. I never came across one myself. But, I think that my colleagues who did always felt like they had discovered a “nugget of gold” in the least expected place! It would also help the Immigration Courts because most of the Registry cases (like the TPS cases) could be adjudicated over at USCIS, thereby reducing “docket pressure.” Bring back Registry! Yea Nolan!

PWS

09-14-17

HON. JEFFREY CHASE: Stripped By Ashcroft Of The Appellate Judges Who Understood Asylum Law & Stood Up For The Rights Of Refugees, An Emasculated BIA (With No Meaningful Deliberation Or Dissent) Intentionally Misconstrued The “Particular Social Group” Category To Screw Asylum Seekers! — READ MY LATEST “MINI-ESSAY” –“ARBITRARY AND CAPRICIOUS”  — How The BIA Intentionally Misconstrued Asylum Law To Deny Particular Social Group Protection, While The Obama Administration Turned Its Back On Due Process For Refugees!

https://www.jeffreyschase.com/blog/2017/9/14/particular-social-group-errors-in-the-bias-post-acosta-analysis

Jeffrey writes:

Particular Social Group: Errors in the BIA’s Post-Acosta Analysis

In 2006, the Board of Immigration Appeals published its decision in Matter of C-A-, the first in a line of cases creating significant restrictions on what constitutes a cognizable particular social group in claims for asylum. It is worth noting that three years earlier, then Attorney General John Ashcroft purged the BIA of its five most liberal members; two other Board members who clearly would have been removed as well left just prior to the purge. Therefore, the ensuing line of BIA precedents addressing particular social group issues were something of a one-sided affair, with no liberal voices to temper or dissent from the majority.

 

Back in 1985, the Board decided Matter of Acosta, in which it set forth the applicable standard for particular social group determinations.  Not surprisingly, particular social group has proven more difficult for courts to interpret than the other four grounds of race, religion, nationality, and political opinion.  This is because one doesn’t start out asking the question “what is a race?” or “what is a religion?”  Those terms are generally understood.  Not so with particular social group, which as I learned it, was a last-minute creation designed to cover those clearly in need of refugee protection who aren’t covered by the other four grounds.  In Acosta, the Board had to decide how broadly the “PSG” category should be interpreted.  In response to evidence that the drafters of the 1951 Convention considered the ground of particular social group “to be of broader application than the combined notions of racial, ethnic, and religious group,” the Board applied the doctrine of ejusdem generis to conclude that a particular social group, like the four other categories it is grouped with, should be defined by characteristics that are immutable either because its members are unable to change them (like race and nationality), or because they should not, as a matter of conscience, be required to change them (like religion or political opinion).

The Acosta formulation was fair, and worked perfectly well for 21 years.  It was consistent with the way particular social group was being interpreted and applied internationally, and was in no need of modification.  Yet, the post-purge Board added two additional hurdles to particular social group determination: social distinction (previously called social visibility) and particularity.  As discussed below, the result-oriented line of decisions are legally flawed.

Matter of C-A-’s “social visibility” analysis contains at least three errors.   First, as Prof. Karen Musalo, Director of the Center for Gender and Refugee Studies (CGRS) at the University of California – Hastings Law School in San Francisco has pointed out, although the Board in Matter of C-A- cited to the 2002 UNHCR Guidelines on Particular Social Groups as a basis for adding the social distinction requirement, there is a significant difference between the Board’s holding and the UNHCR Guidelines.  The Guidelines at para. 11 define particular social group as “a group of persons who share a common characteristic other than their risk of being persecuted OR  who are perceived as a group by society.”  Note the use of “or.”  “Or” was intended to expand the group of those who satisfy for PSG status, by including both those who share a common characteristic  OR possess what the Board now calls social distinction.  However, the Board changed the “or” to an “and,” which has the opposite effect of significantly narrowing those who can establish a cognizable PSG by requiring both a shared characteristic and social distinction.

Secondly, the Board found that the proposed group of confidential informants lacked social “visibility” (as it then called social distinction) because informants, by the nature of their conduct, are “generally out of the public view,” and “in the normal course of events…remain unknown and undiscovered.”  However, this is irrelevant to whether the group itself is perceived by society to be distinct.  For example, “Russian spies” by the nature of their conduct, seek to remain unknown, undiscovered, and out of the public eye.  However, the group is often in the news, and is the subject of a popular TV show. It has served as the basis for characters in countless novels and films for decades, and has inspired the passage of anti-espionage laws.  The Board thus erred in apparently confusing the “singled out” requirement of the individual asylum applicant with the “social distinction” requirement of the proposed group.

Thirdly, the Board in C-A- stated that visibility of a group of confidential informants “is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members.”  In that case, the cartel members were the persecutors.  However, the Board has claimed that it is the perception of society, and not the persecutors, that determines social distinction.

The particularity requirement is also problematic.  The element requires the social group to be defined by characteristics that provide a clear benchmark for determining inclusion.  The Board requires the terms used to define the group to have “commonly accepted definitions in the society in which the group is a part;” and “[t]he group must also be discrete, and have definable boundaries–it must not be amorphous, overbroad, diffuse, or subjective.”  See Matter of W-G-R-, 26 I&N Dec. 208, 214 (BIA 2014); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 76 (BIA 2007) (rejecting the proposed group as “too amorphous…to provide an adequate benchmark for determining group membership”).

However, in applying the new requirement of particularity to particular social group determinations only, the Board violated the doctrine of ejusdem generis that it had invoked in Acosta.  This is significant, as determinations under the other four protected categories would not necessarily stand up to the particularity determination.  In finding the proposed group of “former members of the MS-13 gang in El Salvador who have renounced their gang membership” to lack particularity, the Board stated that the proposed group “could include persons of any age, sex, or background.”  Matter of W-G-R-, 26 I&N Dec. 208, 221 (BIA 2014).  Of course, race, religion, and nationality will always include persons of any age, sex, or background; and political opinion could also draw from as wide a range of the population.

In a claim of persecution on account of religion, would the Jewish religion, for example, withstand the particularity requirement?  There is a strong chance that such group would be found too amorphous to provide an adequate benchmark for inclusion.  For example, a 2013 study by the Pew Research Center found that 14 percent of American Jews stated that they were raising their children “partially Jewish.”  Do “partially Jewish” claimants merit inclusion in the group?  What about those who only attend synagogue once a year, on Yom Kippur?  Or those who consider themselves culturally Jewish, but don’t observe the religion?  Or those with only a Jewish father (who would therefore not be considered Jewish under traditional Jewish law, but would be considered Jewish in the more liberal Reform branch of the religion)?  Where is the benchmark for inclusion?

Looking to the other asylum categories, is one said to possess a political opinion because she votes once every four years for candidates of a particular party, or because she has canvassed for a party’s candidates, given speeches at rallies, or run for office herself?  In this time of multiculturalism, where individuals of mixed race or ethnicity may choose to identify with a particular race or nationality from among two or more choices, would those categories also be found too amorphous?

In addition to the above shortcomings, attorneys have pointed out that particularity and social distinction often work at odds with each other.  Groups that rank high on society’s radar are usually not defined with the type of specific parameters for inclusion, and would therefore be dismissed as too “amorphous.”  Conversely, groups defined with the exacting precision demanded of the particularity requirement tend to be too cumbersome to register in the zeitgeist.  As an example, the term “soccer moms” became popular in American society several presidential elections ago, when “winning the soccer mom vote” was deemed a significant goal.  So while the term “soccer moms” clearly possessed social distinction, it would undoubtedly be found too amorphous to satisfy the particularity requirement.  However, “married middle-class suburban women between the ages of 32 and 47, who spend a significant amount of time driving their school-aged children to multiple after-school activities, which may or may not include soccer” might be particular enough, but will not grab public attention to the degree required to qualify as social distinction.

In spite of the above shortcomings, the federal circuit courts have largely accorded deference to the Board’s flawed interpretation.  Although immigration judges are bound by the Board’s holdings, practitioners may raise the above issues in order to create a record for eventual review by the circuit courts.  The Seventh and Third Circuits have rejected the particularity requirement for different reasons than those stated above.  As I am not aware of any circuit court addressing the issue of whether religion or any other protected ground would stand up to the particularity requirement, I present it as an argument worth pursuing.

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

Republished with permission.

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“ARBITRARY AND CAPRICIOUS”  — How The BIA Intentionally Misconstrued Asylum Law To Deny Particular Social Group Protection, While The Obama Administration Turned Its Back On Due Process For Refugees!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

The original Acosta decision was also wrongly decided on the merits. Of course most “occupational groups” have characteristics that are fundamental to their identity and are, therefore, properly classified as PSGs for asylum and withholding of removal purposes under the INA!

Taxi drivers in San Salvador were clearly a well-recognized tightly-knit group who were identified as such by the public, the Government, and the guerrillas and weren’t lightly going to switch occupations. That’s why they were targeted by both sides!

The result in Acosta was also completely nonsensical from a policy standpoint. The BIA’s “bottom line” was that taxi drivers in San Salvador who feared the guerrillas could either quit their jobs en masse or participate in a transportation strike called by the guerrillas. But, either of those actions would have crippled the Salvadoran Government which the U.S. was supporting during the guerrilla war! How stupid can you get! But, when categorically denying asylum to large groups of Central American refugees, there’s no limit to what captive adjudicators who want to hang on to their jobs will do to avoid granting protection!

Would you tell a New York cabbie that his or her occupation isn’t “fundamental” to his or her identity? I certainly wouldn’t do it while sitting in his or her back seat. How many yarns, stories, and jokes have you heard with the phrase “like a New York cabbie?” There are even movies glorifying or vilifying the occupation!

How about American truck drivers? They have their own culture, lingo, and even restaurants, gas stations, and stores. Next time you walk into a Pilot Truck Stop along the Interstate, see if you can tell the “pros” from the “amateur divers” like me. Then go up to one of those “pros” and tell him or her that he or she could just as well make a living  as a checkout clerk or a computer programmer! Or, walk into the “Reserved for Professional Drivers” section, take a seat, and see how long you last. I really wouldn’t try either of the foregoing unless you have very good hospitalization insurance.

Want to bet that being a lawyer or a judge isn’t fundamental to one’s identity — just ask a non-lawyer, non-judge spouse or anyone whose ever had to attend a social function with with one of us? My wife Cathy can usually pick the lawyers out in a room even without introductions!  They “dress, act, and speak” like lawyers!

I might also add that the identity of being a BIA Appellate Judge is so “fundamental” to some of my former colleagues’ identity that they were willing to put forth a totally disingenuous interpretation of the U.N. Guidelines and blow off both fairness and due process for vulnerable asylum seekers (the BIA’s sole functions) to retain their jobs as Appellate Judges in the Bush and Obama Administrations, which were generally actively hostile or clearly indifferent to the rights of refugees. Nobody had the guts to stand up for a correct intrerpretation of the Refugee Convention which would have saved many lives and made the whole immigration system fairer and easier to administer in the long run.

There actually was a U.S. Circuit Judge way out in the 8th Circuit, of all places, who saw clearly the BIA’s disingenuous approach and “called” them on it. The case is Gaitan v. Holder, 671 F.3d 678, 682-86 (8th Cir. 2012) (Bye, Circuit Judge, concurring), the concurring Judge was Judge Bye, and I reproduce the concurring opinion in full from “Legale” because Judge Bye is so “spot on” and, regrettably, so few people paid attention to his criticism:

BYE, Circuit Judge, concurring.

Based upon our recent decisions in Constanza v. Holder, 647 F.3d 749 (8th Cir. 2011) (per curiam) and Ortiz-Puentes v. Holder, 662 F.3d 481 (8th Cir.2011), I concur in the result reached by the majority. I do so reluctantly, however, and write separately to express my disagreement with our circuit’s as-a-matter-of-course adoption of “social visibility” and “particularity” as requirements for establishing “membership in a particular social group.” See 8 U.S.C. § 1101(a)(42)(A). While both decisions cited with approval the BIA’s new approach to defining “particular social group,” neither had before it the issue raised in this appeal: did the BIA act arbitrarily and capriciously in adding the requirements of “social visibility” and “particularity” to its definition of “particular social group.” While I am convinced it did, I am nonetheless bound by circuit precedent and therefore concur in the result.

Our circuit only recently addressed the BIA’s new approach to defining “particular social group.” While both Constanza and Ortiz-Puentes grafted the requirements of “social visibility” and “particularity” to petitioners’ social groups claims, neither panel offered any explanation as to why the addition of these new requirements—which are very clearly inconsistent with the BIA’s prior decisions—should not be deemed arbitrary and capricious. Neither panel inquired as to whether the BIA had provided a good reason, or any reason at all, for departing from established precedent. Neither asked if the BIA’s new approach to defining “particular social group” amounted to an arbitrary and capricious change from agency practice. Instead, we simply adopted the new approach, as a matter of course, offering no substantial reason ourselves for this shift in direction. As a result, I fear we have chosen the wrong direction.

In order to understand why the BIA’s addition of the “social visibility” and “particularity” requirements to the definition of “particular social group” is arbitrary and capricious, some background information is necessary. The BIA first attempted to define “particular social group” in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A.1985). In Acosta, the BIA relied on the canon of ejusdem generis to construe “membership in a particular social group” in a way which most closely resembles the definition of the other four grounds of persecution under the Immigration and Nationality Act (Act): race, religion, nationality, and political opinion. Id. at 233. After deducing commonalities between the five bases of persecution cognizable under the Act, the BIA defined “particular social group” as a “group of persons all of whom share a common, immutable characteristic,”

[671 F.3d 683]

 

which may be either “an innate one such as sex, color, or kinship ties” or a “shared past experience such as former military leadership or land ownership.” Id. In all such circumstances, BIA explained, the characteristic uniting the group must be “one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. Because an occupation is not something individuals are either unable to change or, as a matter of conscience, should not be required to change, the BIA rejected an asylum claim by a taxi driver in the city of San Salvador premised on his membership in a taxi cooperative whose members were targeted by the guerillas for having refused to participate in guerrilla-sponsored work stoppages. Id. at 234.

During the next twenty years, the BIA applied the immutability definition of Acosta in a variety of contexts. The BIA’s published decisions recognized as a “particular social group” former members of Salvadorian national police (who could not change their past experience of serving in the police), see In re Fuentes, 19 I. & N. Dec. 658 (B.I.A.1988); members of the Marehan subclan of the Darood clan in Somalia (who shared kinship ties and linguistic commonalities), see In re H-, 21 I. & N. Dec. 337 (B.I.A. 1996); Filipinos of mixed Filipino-Chinese ancestry (because their traits were immutable)], see In re V-T-S-,21 I. & N. Dec. 792 (B.I.A.1997); young women of a certain Togo tribe who have not yet had a female genital mutilation (FGM) and who opposed the practice on moral grounds (because the “characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she should not be required to change it”), see In re Kasinga, 21 I. & N. Dec. 357 (B.I.A.1996); and homosexuals in Cuba (based on the Board’s recognition of homosexuality as an immutable characteristic), see In re Toboso-Alfonso,20 I. & N. Dec. 819, 822 (B.I.A.1990). With some variations, all circuits adopted the Acostadefinition of “particular social group.” See generally Fatma E. Marouf, The Emerging Importance of “Social Visibility” in Defining a “Particular Social Group” and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender, 27 Yale L. & Pol’y Rev. 47, 53 & n. 24 (2008) (stating federal courts “generally have followed Acosta” and cataloging relevant precedents) (hereinafter “The Emerging Importance of Social Visibility”). Our circuit adopted the Acosta definition as well, although it seemingly expanded it following the Ninth Circuit’s lead to also permit social groups based on a “voluntary associational relationship among the purported members.” Safaie v. INS, 25 F.3d 636, 640 (8th Cir.1994) (theorizing a group of Iranian women who refuse to conform to Iranian customs relating to dress and behavior and whose opposition is so profound that they would choose to suffer the severe consequences of noncompliance “may well satisfy the definition”) (citing the standard in Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986)).

Beginning in 2006, however, the BIA started deviating from the Acosta definition of “particular social group” by emphasizing the importance of social visibility of a given group. In Matter of C-A-, for example,2 the BIA reiterated its adherence

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to Acosta, but listed “the extent to which members of a society perceive those with the characteristic in question as members of a social group” as a “relevant factor” in the analysis. 23 I. & N. Dec. 951, 956-57 (B.I.A.2006). Applying this standard, the BIA rejected the proposed social group of noncriminal drug informants working against the Cali drug cartel in Colombia in part because “the very nature of the conduct at issue is such that it is generally out of the public view.” Id. at 960.

The BIA continued the trend in Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A.2007), by refusing to recognize a social group of “affluent Guatemalans” targeted for ransom. The BIA acknowledged the petitioners should not be expected to divest themselves of their wealth under the second prong of Acosta, but denied the claim on the basis of the applicants’ inability to show “social visibility,” id. at 75 (lamenting the lack of evidence to demonstrate “the general societal perception” of wealthy people was different from the common perception of groups at different socio-economic levels), and “particularity,” id.at 76 (criticizing the proposed group for being “too amorphous” and “indeterminate”). In its reasoning, the BIA drew on the Second Circuit opinion in Gomez v. INS, 947 F.2d 660, 664 (2d Cir.1991), where the court required members of a cognizable social group to possess “some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor—or in the eyes of the outside world in general.”

The biggest transformation in the BIA’s “particular social group” jurisprudence, however, came in its two most recent decisions issued on the same day in 2008: Matter of S-E-G-,24 I. & N. Dec. 579 (B.I.A.2008), and Matter of E-A-G-, 24 I. & N. Dec. 591 (B.I.A.2008). Both confronted claims of gang-related persecution under the rubric of membership in a particular social group. In E-A-G-, the BIA refused to recognize social groups of “young persons who are perceived to be affiliated with gangs (as perceived by the government and/or the general public)” and “persons resistant to gang membership (refusing to join when recruited)” because these groups “have not been shown to be part of a socially visible group within Honduran society, and the respondent [does not] possess[] any characteristics that would cause others in Honduran society to recognize him as one who has refused gang recruitment.” 24 I. & N. Dec. at 593-94. In S-E-G-, the unsuccessful group was that of Salvadorian youth who have been subjected to recruitment efforts by the MS-13 and who have rejected and resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities. 24 I. & N. Dec. at 579. Their claim for asylum failed because, according

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to the BIA, it did not fare well under the “recent decisions holding that membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility.” Id. In essence, the decisions elevated the requirements of “social visibility” and “particularity” from merely some of the many factors in the holistic analysis of the issue to absolute prerequisites to establishing membership in a particular social group.

This new approach to defining “particular social group” split the circuits as to the validity and permissible extent of the BIA’s reliance on “social visibility” and “particularity.” Compare Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 603-09 (3d Cir.2011) (concluding the BIA’s “social visibility” and “particularity” requirements are inconsistent with prior BIA decisions and rejecting the government’s attempt to graft these additional requirements onto petitioner’s social group claims); Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (criticizing the BIA’s decisions in S-E-G- and E-A-G- for being “inconsistent” with the BIA’s precedents in Acosta and Kasinga and for failing to explain the reasons for adopting the “social visibility” criterion); Benitez Ramos v. Holder, 589 F.3d 426, 430-31 (7th Cir.2009) (denouncing the BIA’s insistence on “social visibility,” sometimes in its literal form, and charging the BIA might not understand the difference between visibility in a social sense and the external criterion sense); Urbina-Mejia v. Holder, 597 F.3d 360, 365-67 (6th Cir.2010) (noting being a former gang member is an immutable characteristic and defining former members of the 18th Street gang as a “particular social group” based on their inability to change their past and the ability of their persecutors to recognize them as former gang members), with Lizama v. Holder, 629 F.3d 440, 447 (4th Cir.2011) (upholding the BIA’s definition of a particular social group as requiring that “(1) its members share common immutable characteristics, (2) these common characteristics give members social visibility, and (3) the group is defined with sufficient particularity to delimit its membership”); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir.2009) (upholding the BIA’s adoption of the “social visibility” requirement); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir.2009) (rejecting petitioners’ claims the BIA is precluded from considering the visibility of a group); and Fuentes-Hernandez v. Holder,411 Fed.App’x. 438, 438-39 (2d Cir. 2011) (stating individuals who resisted gang recruitment in El Salvador do not constitute a “particular social group” because their proposed group lacked “social visibility” and “particularity” and because the alleged persecution “did not bear the requisite nexus to a protected ground”).

I agree with the circuits which hold the BIA’s addition of the “social visibility” and “particularity” requirements to the definition of “particular social group” is arbitrary and capricious. First, as discussed above, these newly added requirements are inconsistent with prior BIA decisions. Specifically, they are in direct conflict with the definition of “particular social group” announced in Acosta. By stating this, I am in no way suggesting the BIA must continue to adhere to the Acosta definition. I am of course cognizant the BIA may “add new requirements to, or even change, its definition of `particular social group'” over time. Valdiviezo-Galdamez, 663 F.3d at 608; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (stating an agency may change its interpretation of a stature or regulation over time). The BIA, however, must explain its choice for

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doing so because an unexplained departure from established precedent is generally “a reason for holding [the departure] to be an arbitrary and capricious change from agency practice[.]” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005); see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 1811, 173 L.Ed.2d 738 (2009) (stating “the agency must show that there are good reasons for the new policy”); Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1123 (8th Cir. 1999) (noting “a sudden and unexpected change in agency policy” may be characterized as arbitrary and capricious).

Because the BIA departed from its well-established Acosta definition without providing a reasonable explanation for its choice, the departure is arbitrary and capricious. Thus, although I am bound by our decisions in Constanza and Ortiz-Puentes, I cannot agree with our circuit’s as-a-matter-of-course adoption of the BIA’s new approach to defining “particular social group”—an approach which not only represents a stark departure from established precedent, but also eviscerates protections for many groups of applicants eligible under the agency’s prior definition.

Therefore, I reluctantly concur in the result.

FootNotes

1. Gaitan does not address the denial of relief under the Convention Against Torture in his brief. Any argument based on that ground is therefore deemed waived. See Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 n. 3 (8th Cir.), cert. denied, ___U.S. ___, 132 S.Ct. 315, 181 L.Ed.2d 194 (2011). Gaitan notes that he does not waive his claim that he is otherwise eligible for relief in the form of withholding of removal under the INA. However, “[t]he standard for withholding of removal, a clear probability of persecution, is more rigorous than the well-founded fear standard for asylum. An alien who fails to prove eligibility for asylum cannot meet the standard for establishing withholding of removal.” Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005) (internal citations omitted). Because we find that Gaitan is not eligible for asylum, Gaitan is unable to meet the standard for establishing withholding of removal.

 

2. The BIA signaled its intention to break away from the Acosta standard as early as 2001, in its decision in Matter of R-A-, 22 I. & N. Dec. 906 (B.I.A.2001). There, the BIA refused to accord a social group status to a group of “Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination.” Id. at 917-18. Although the outcome of the opinion was unobjectionable even under the traditional Acosta standard, its logic was noteworthy for the BIA’s insistence that the applicant demonstrate “how the characteristic is understood in the alien’s society” and how “the potential persecutors… see persons sharing the characteristic as warranting suppression or the infliction of harm.” Id. at 918. Because at the time R-A- was issued, the Immigration and Naturalization Service was in the process of finalizing a rule defining “membership in a particular social group,” the Attorney General vacated the BIA’s opinion pending the publication of that rule. In re R-A-, 22 I. & N. Dec. 906 (B.I.A.2001). The proposed rule would incorporate R-A-‘s consideration of social visibility, but only as one of several non-exclusive factors. Asylum & Withholding Definitions, 65 Fed.Reg. 76,588, 76,594 (Dec. 7, 2000). Ultimately, the rule was never formalized, and the ball was back in the BIA’s court to define the “particular social group” incrementally, on a case-by-case basis.”

When Gaitan came out in 2012, the Bushies were gone Obama had taken over, and the Attorney General was Eric Holder. One might have thought that someone with Holder’s reputation for civil rights sensitivity and equal justice under the law might have forced the BIA to confront its tarnished past, or at least have appointed some “asylum experts” as Appellate Judges to force the BIA to engage in some “two-sided” appellate deliberation.
But, alas, Holder, like his successor Attorney General Loretta Lynch, didn’t  see a need to extend civil rights and fair legal treatment to refugees and asylum seekers being mistreated by the DOJ’s wholly owned subsidiary, the BIA. It became apparent that Holder and Lynch rather liked the idea of owning a complacent, largely pro-Government appellate court just as much as Ashcroft and the Bushies did.
During the Obama Administration, the BIA continued to be comprised of Appellate Judges who were insiders and/or bureaucrats. They kept the numbers rolling, didn’t rock the boat, almost never dissented, and “went along to get along” even with obviously flawed legal policies that forced scared, often semi-literate women and children to represent themselves before the U.S. Immigration Courts and make out cases under the BIA’s arcane, convoluted, and generally applicant-unfriendly definitions of PSG. So Sessions was able to take over a dysfunctional court system (in terms of its due process mission), but a relatively well-oiled “denial mill” masquerading as a Federal Appellate Court. And, that’s where we stand today, folks!

The U.S. Immigration Courts will not regain integrity until the are removed from the Executive Branch and reconstituted as as an independent Article I or even Article III Court. Until then, it’s likely that refugees and asylum seekers will continue to suffer unfair treatment, bias, and undeserved fates under the U.S. asylum system. Doesn’t anybody care?

PWS

09-14-17