Go on over to Dan Kowalski at LexisNexis Immigration Community to read this outrageous abuse of justice by a U.S. Immigration Judge!
Matter of K-D-H-, unpublished (BIA 10-05-17)
Here’s the link:
The BIA Panel that got this one right was:
Chairman/Chief Appellate Judge David Neal
Appellate Immigration Judge John Guendelsberger
Appellate Immigration Judge Molly Kendall Clark
OPINION BY: Judge Kendall Clark
Interestingly, this panel configuration seldom, if ever, appears in BIA precedent decisions. Nor are these Judges recorded as dissenting or commenting upon the BIA’s generally anti-asylum precedents, some of which almost mock the BIA’s leading precedent on the generous nature of asylum law following the Supreme Court’s decision in INS v. Cardoza-Fonseca: Matter of Mogharrbi, 19 I&N Dec. 439 (BIA 1987).
So, why are the Appellate Immigration Judges who appear to have a good understanding of asylum law that is much more in line with the Supreme Court, the U.S. Courts of Appeals, and the BIA’s own pre-2003 precedents “buried in obscurity?” Meanwhile, those Appellate Immigration Judges who evince a lack of understanding of asylum law, the realities of being asylum applicants in the “purposely user unfriendly” Immigration Courts, or any visible sympathy for the plight of asylum seekers (even those who are denied under our overly technical legal standards often face life threatening situations upon return — some actually die — we just choose not to take the necessary steps to protect them) seem to be among the “featured” in BIA precedents? Do all of the BIA Judges really agree with every precedent. If not, why aren’t we seeing some public dialogue, debate, and dissent, as with every other collegial, deliberative court in America? What’s the purpose and value of a “deliberative court” that almost never engages in any public deliberation (about some of the most difficult and complex questions facing our nation)? Where’s the accountability if all BIA Appellate Judges are not recording their votes on published precedents?
As you read the BIA decision and the decision below of Judge Randall Duncan of the Stewart Immigration Court here are a few questions you might keep in mind:
- Why doesn’t Judge Duncan cite any actual cases? (He refers to “the Eleventh Circuit” with no specific citations.)
- Why didn’t Judge Duncan follow (or even discuss) either the BIA’s precedent in Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) or the Eleventh Circuit precedent in De Santamaria v, U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008) both of which discuss “cumulative harm” and would inescapably have led to the conclusion that this respondent suffered past persecution?
- Why isn’t this a published precedent in light of Judge Duncan’s clear misunderstanding of the applicable asylum law and because of the notorious reputation of the Atlanta-Stewart Immigration Courts as an “asylum free zone.”
- Why did Judge Duncan, a relatively new Immigration Judge (Nov. 2016), attempt to dispose of this case with an obviously inadequate “Oral Decision.”
- What kind of asylum training did Judge Duncan get?
- What would have happened if this individual had been unrepresented (as many asylum applicants are at Stewart)?
- What steps have the DOJ and EOIR taken to improve the poor substantive performance of some Immigration Judges who ignore applicable legal standards and deny far too many asylum cases?
- What will Jeff Sessions’s “more untrained Immigration Judges peddling even faster” do to due process and justice in a court system that is currently failing to achieve fairness and due process in too many cases?
Taking a broken system and trying to expand it and make it run faster is simply going to produce more unfair and unjust results. In other words, it would be “insanely stupid.” The Immigration Court system has some serious quality of decision-making, bias, consistency, and due process issues that must be solved before the system can be expanded. Otherwise, the system will be institutionalizing “bad practices” rather than the “best practices.”