🗽⚖️🇺🇸⚔️🛡 ROUND TABLE (THANKS TO WILMER CUTLER PRO BONO) JOINS OTHER NGOS IN URGING SUPREMES TO PRESERVE MEANINGFUL JUDICIAL REVIEW FOR CANCELLATION!  (Wilkinson v. Garland) — Rae Ann Varona Reports for Law360:

Rae Ann Varona
Rae Ann Varona
Legal Reporter
Law360
PHOTO: Linkedin

Dan Kowalski over at LexisNexis Immigration Community helpfully forwarded the pdf’s of Rae Ann’s article and the three briefs. You can access them here:

Ex-Immigration Judges Back Trinidadian Man Before Justices – Law360

1718000-1718295-former eoir judges

1718000-1718295-domestic violence orgs

1718000-1718295-aila

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

Our Round Table, with the help of some of the greatest litigators and law firms out there, continues to provide key support for the NDPA and timely expertise to the Federal Courts and father Executive on all levels!

🇺🇸Due Process Forever!

PWS

09-08-23

HON. JEFFREY S. CHASE:  The Message From Barr’s Improper Intervention in Matter of R-A-F-: Forget The Law, You Are My Stooges! — Only An Independent Article I Immigration Court Will End This Mockery of Due Process & Fundamental Fairness!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

https://www.jeffreyschase.com/blog/2020/3/1/the-real-message-of-matter-of-r-a-f-

The Real Message of Matter of R-A-F-

On February 26, the Attorney General (or more likely, someone authorized to speak on his behalf) issued a precedent decision in Matter of R-A-F-.  My take on the import of this decision seems to be different than most.  Let me first provide some background.

Most people seeking asylum in this country also apply for a lesser form of protection called withholding of removal under Article III of the U.N. Convention Against Torture (“CAT” for short).  Whereas asylum provides a path to U.S. permanent residence, CAT only prevents someone with a deportation order from being sent to a country in which they are likely to suffer torture.  CAT generally only comes into play where the applicant isn’t found eligible for asylum, something which is happening more frequently as the present administration churns out new bars and obstacles to eligibility.

To provide an example, someone who establishes they will likely be murdered or raped if returned to their country may be barred from even applying for asylum if they didn’t file their application within one year of their arrival in this country, or if they did not apply for asylum in a third country they passed through en route to the southern border.  Even if allowed to apply, they may still be denied asylum if the immigration judge does not determine that their persecution would be for the proper motive.  But while our asylum laws as written allow some leeway as to whom the government will afford permanent status in the U.S., the same government is bound by international treaty not to send an individual to a place where they would suffer persecution.  It is often CAT that fills the gap between those who are not permitted to remain permanently but should nevertheless not be repatriated.

The U.S. was one of 154 countries to sign the U.N. Convention Against Torture.  However, it was the only country to add a “specific intent” requirement to its internal regulations implementing the convention, requiring a finding that the torture “be specifically intended to inflict severe…pain and suffering,” and specifically excluding acts that result “in unanticipated or unintended severity of pain or suffering.”1  The specific intent requirement seriously undermines the purpose of the law, as many are forced to rely on CAT specifically because they couldn’t prove the proper intent of their persecutor that is required for asylum.  It is thus necessary for the specific intent provision to be interpreted in the least restrictive manner for CAT to function in its intended way.

In 2002, the BIA had its first chance to interpret how the specific intent requirement should be applied in a case called Matter of J-E-.  At the time, the BIA was comprised of judges holding diverse views of the law.  As a result, the Board was sharply split on the issue.  The more restrictive reading won out, but 6 judges dissented.2  Five of them were no longer on the BIA a year later following then Attorney General John Ashcroft’s infamous purge of Board judges whom he viewed as too liberal.

An important point that was glossed over in the majority opinion in Matter of J-E- and its progeny is that where governments do intentionally maintain horrific conditions in its prisons or mental institutions that are intended to punish those institution’s populations, they tend to be smart enough not to admit to it.  To illustrate this point, I refer to a November 12, 2019 report of the Washington Post finding that although the Trump Administration characterized its outrageous treatment of unaccompanied immigrant children as an unintended consequence of the volume of immigrants seeking asylum at the border, such outcome “also was a result of policy decisions that officials knew would ensnare unaccompanied minors in bureaucratic tangles and leave them in squalid conditions.”

Cognisant of this fact, in his dissenting opinion in Matter of J-E-, Hon. Paul W. Schmidt found the specific intent requirement to be satisfied by a “clearly documented acceptance of extreme mistreatment amounting to torture as a routine aspect of detention in Haiti.”  Concluding that the Haitian government “cannot claim it does not know what happens to detainees in its prisons,” Judge Schmidt found the specific intent requirement to have been met.  Hon. Lory D. Rosenberg began her companion dissenting opinion in the case by quoting from the Second Circuit that “Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture.”3

In late 2018, the BIA again rejected such arguments and reiterated the majority view of J-E- in another precedent decision, Matter of J-G-R-P-.  This time, the BIA did so in a three-judge panel decision in which there were no dissents.  As this decision was published less than 16 months prior to the A.G.’s decision in R-A-F-, there was really no need at the time the A.G. issued R-A-F- for another decision on the topic.

I thus believe the real motive behind issuing the decision was not to give guidance, but rather to serve warning.  While published precedential decisions have always received broad attention, individual BIA appellate judges have felt safe affording relief in sympathetic cases  in unpublished decisions where the outcome is generally known only to the parties involved.

A colleague recently made me aware of a job posting within EOIR for an attorney to work not for the Immigration Courts or the BIA, but rather within the office of EOIR’s director, James McHenry, who has imposed the administration’s political will on the agency’s judges with a heavy hand.  The job description included “review(ing) court cases including appeals cases for adherence to procedural requirements, proper interpretation and application of statutes, regulations and precedents,” and “recommend(ing) action on precedent-setting issues to senior officials.”  In other words, McHenry was looking to hire what is commonly referred to as a “snitch” to sort through decisions that might not pass muster with the likes of Stephen Miller, and flag them for corrective action.  One such shameless staffer apparently flagged R-A-F- in this manner, and through the resulting A.G. certification, the case will serve as a cautionary tale for a group of BIA judges that certainly hasn’t forgotten the fate of the Matter of J-E- dissenters.

The decision in question was issued in September by Appellate Immigration Judge Linda Wendtland, whose retirement party was held this past week.  Judge Wendtland is by no means a liberal, and worked the majority of her career for the Department of Justice; prior to her appointment to the BIA, she had been an assistant director with the DOJ’s Office of Immigration Litigation.  But Judge Wendtland is highly knowledgeable of the law, and is reasonable and fair (all endangered qualities on the present BIA).

Looking to Judge Wendtland’s decision below, it would be difficult to find a more sympathetic applicant than R-A-F-.  The respondent seeking CAT protection is in his 70s, and suffers from Parkinson’s disease, dementia, Major Depressive Disorder, traumatic brain injury, PTSD, and chronic kidney disease.  The evidence of record established that if returned to his native Mexico, R-A-F- faced a significant risk of being institutionalized in a facility in which he could be subject to physical and sexual abuse, physical and chemical restraints, and containment in cages and isolation rooms, all without access to justice.  Judge Wendtland agreed with the Immigration Judge that such treatment rose to the definition of torture.

Based on her reputation and body of work, Judge Wendtland is undoubtedly someone who had earned the right to have her decision in R-A-F- accorded deference.  However, these are different times.  And instead of deference, the A.G. (who, of course, knows next to nothing about immigration law or the specific matter in question) chose to unceremoniously refer to himself and then slam the BIA’s decision.  The legacy of such action will be fully felt the next time a single judge at the BIA has the opportunity to affirm a similarly sympathetic grant of relief, but will instead choose not to do so out of fear and self-preservation.  This is not how justice should be afforded to our country’s most vulnerable population.

Notes:

  1. 8 C.F.R. § 1208.18(a)(5).
  2. I am proud to note that the authors of the two dissenting opinions, Paul W. Schmidt and Lory D. Rosenberg, and former BIA judge Cecelia Espenoza, who joined in both dissents, are presently members of the Round Table of Former Immigration Judges.
  3. Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Reprinted with permission.

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

Thanks, Jeffrey my friend,  for the “shout out” for the dissents of Lory, Cecelia, and me in Matter of J-E-!

I recently reached the same conclusion as Jeffrey about R-A-F-although in less scholarly, measured, and elegant terms: https://immigrationcourtside.com/2020/02/28/barr-to-his-wholly-owned-immigration-judges-just-deny-cat-protection-any-ol-ground-will-do-matter-of-r-a-f-27-in-dec-778-a-g-2020/.

I have said before that I always respected Judge Wendtland. She was a scholarly, industrious, fair-minded, “center right” jurist. While I had been exiled from the BIA before she was appointed, she seemed like a judge with whom I would have enjoyed having a continuing dialogue, much like my more conservative, yet thoughtful and scholarly, friend the late Judge Lauri Steven Filppu. And, we probably would have ended up on the same side of a number of issues coming before the BIA. 

It’s both disheartening and enraging to see that even “conscientious conservative” jurists like Judge Wendtland get no real respect and deference from the likes of Billy Barr and his toady colleagues. And, the function of having Director McHenry “ride heard” on the BIA is both unethical and stupid, since he is not an Immigraton Judge himself. Indeed, the gross incompetence with which todays’ EOIR is managed suggests that the Director’s sole role should be to attend to the failing administrative and support structure of the Immigration Courts in a nonpartisan, apolitical manner under the direction of, not overseeing, the BIA Chair and the Chief Immigration Judge. 

This system is broken! Every time an Article III Circuit Court signs off on an order of removal resulting from this unconstitutional, unethical, and grossly mismanaged morass, those Article III Judges enable the regime’s continuing fraud, waste, and abuse, and shirk their sworn constitutional duties.

PWS

03-02-20

BARR TO HIS WHOLLY OWNED IMMIGRATION JUDGES: Just Deny CAT Protection – Any Ol’ Ground Will Do – Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020)

https://www.justice.gov/eoir/page/file/1252416/download

Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020)

EOIR HEADNOTES:

(1) The Board of Immigration Appeals should consider de novo the application of law to the facts of this case, including whether the deprivations that the respondent would be likely to encounter upon removal to Mexico would constitute “torture” within the meaning of the Department of Justice regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994).

(2) To constitute “torture” under these regulations, an act must, among other things, “be specifically intended to inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5). “‘[T]orture’ does not cover ‘negligent acts’ or harm stemming from a lack of resources.” Matter of J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002)).

(3) To constitute “torture,” an act must also be motivated by “such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).

 

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

Actually, contrary to Billy Barr’s unethical “precedent,” the BIA “panel” in this case consisting of (now retired) Appellate Immigration Judge Linda Wendtland got this one completely right, as did the Immigration Judge.

Admittedly, this respondent isn’t a particularly sympathetic character. But, that’s totally irrelevant in a CAT deferral of removal case, where protection is mandatory if the respondent faces torture with Government acquiescence.

Let’s just take a cursory look at the publicly available information on what happens to mentally ill individuals in Mexico.

 

The Nightmare That Is Mexico’s Mental Health System

Published by Ariel Jacoby on Friday, April 15, 2016 | Features

 

Though there are an estimated 10 million people with mental, visual, hearing or motor disabilities living in Mexico, the country’s mental health system is so dysfunctional that the unlucky patients under its care are colloquially referred to as “abandanodos” – abandoned ones.

It’s an accurate description for these lost souls. A 93-page report from Disability Rights International revealed the horrific living conditions at Mexican mental health facilities, which are a breeding ground for human rights violations and abuse of the handicapped patients that these institutions are meant to help. Many patients never received a clinical diagnosis of their condition and don’t have families to give them private care – these patients remain locked inside the hospitals indefinitely and become completely anonymous to the world.

Patients rock back and forth in urine soaked clothes or walk about soiled, feces-smeared floors without shoes. Bedsheets are an uncommon luxury; hygiene is an abstract concept in a Mexican mental hospital where some “patients and their caretakers could not fully explain how or why they were institutionalized” (New York Times). Without proper oversight and the absence of any sort of registry system, it is not uncommon for mentally ill children to literally disappear from Mexican mental health facilities with no record of their name, age, or families.

In this dismal hole of human despair, atrocities are ubiquitous and plentiful. Many of the patients in these institutions have been detained against their will for years and will likely languish inside the walls of these torture chambers until their death. Psychotropic drugs are excessively relied upon to treat patients and the more aggressive patients who don’t respond to medication can be subject to forced lobotomies, which need only the approval of the facility director. Eric Rosenthal, the director of Disability Rights International, found that 1/4 of the mental health facilities were keeping patients in restraints for extended periods of time – an act that violates Article 1 of the United Nations convention against torture.

 

The concept of human rights has no real meaning or significance in these unregulated, inhumane environments. The investigation conducted by DRI revealed the severity and frequency of human rights violations within the walls of such state-run facilities. In one institution, a terrified blind patient admitted to being raped by one of the staff members – a claim that was quickly dismissed by Mexican officials. In another facility, investigators discovered two young women who had been institutionalized at a young age, grew up in the hospital, and had been working as unpaid laborers for years. There exists no record of how or why these women were institutionalized and Mexican law requires no legal review to detain them indefinitely as modern-day slave laborers.

The director of Samuel Ramirez Hospital, one of the 31 state-run mental health facilities in Mexico, calls his own hospital “hell” and has voiced his belief that the mental health of every patient at his facility have been made worse by their institutionalization. He blames the lack of proper funding and a deficiency of properly trained personnel – at a different mental institution nearby, there are only two psychologists and one doctor to treat the 365 patients who have been institutionalized there.

The sad state of Mexico’s mental health system can be traced back to its government’s complex and deep-rooted political issues. Mexico’s budget for mental health makes up about 2.5% of its overall health spending. This is an improvement from the paltry 1.6% allocated to mental health a decade ago, but still significantly lower than the WHO’s recommendation of 10%. Without a significant electorate of mental health advocates, mental health lacks any real political sway in Mexico. Back in 2006, Mexico was among 96 countries who ratified the United Nations Convention on the Rights of Persons with Disabilities. But it is clear that not much has changed within the system itself.

 

 

https://www.medelita.com/blog/the-nightmare-that-is-mexicos-mental-health-system/

Mexico isn’t Haiti or some other “poor country.” It’s the 15th largest economy in the world. The allocation of a paltry 2-3% of spending on mental health is an intentional embrace of torture by the Mexican Government that relates directly to the dehumanized place of the mentally ill in Mexican society. A Mexican national being deported from the U.S. with a criminal record would very likely receive the “worst of the worst” – not “negligently” but very intentionally. Clearly,. the torture and punishment of the mentally ill just because they are mentally ill is “any reason based on discrimination of any kind.” I give this respondent 90 days max until he’s tortured to death if returned to Mexico. The conditions requiring mandatory deferral of removal under CAT have clearly been met.

 

Judge Wendtland was right. Barr is “dead” wrong. But, Billy’s message to his subordinates is clear: Forget the law: deny, deny, deny!

 

The system is broken. Removal of the Immigration Courts from the DOJ and the end of the ability of unqualified immoral politicos like Billy Barr to interfere in the judicial system in derogation of Constitutional Due Process is essential to the survival of our democracy.

Due Process Forever; Billy Barr Never!

PWS

02-29-20

 

 

ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire

 

Another one bites the dust
Another one bites the dust
And another one gone, and another one gone
Another one bites the dust…

—“Another One Bites The Dust” by Queen

 

ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire

 

By Paul Wickham Schmidt

Exclusive for Courtside

 

Alexandria, VA, Jan. 16, 2019. Appellate Immigration Judge Linda Wendtland will soon retire from the BIA. Acting Chair Garry D. Malphrus made the announcement to judges and staff.

Judge Wendtland is the fourth veteran appellate jurist to leave the BIA recently, following the retirements of Judges Patricia Cole, John Guendelsberger, and Molly Kendall Clark at the end of 2019. Additionally, former BIA Chair Judge David Neal retired suddenly in October.

Thus, the Trump regime’s aggressive effort to “dumb down” and weaponize the U.S. Immigration Courts as a means of depriving migrants of any semblance of due process of law appears to be taking its toll on our nation’s highest administrative immigration tribunal. The BIA now has six vacancies among its 21 authorized judges, including the Chair. Based on recent hiring, we can expect only candidates with established pro-enforcement records and inordinately high rates of asylum denial to be appointed to BIA judgeships by Attorney General Barr.

Judge Wendtland was appointed in 2008 by Attorney General Mukasey, following a long career as a senior litigator in the Office of Immigration Litigation in the DOJ’s Civil Division. She is generally regarded as scholarly, analytical, and occasionally willing to take positions favoring migrants rather than DHS in appellate decisions, notwithstanding her government litigation background. The qualities of scholarship, impartial analysis, and decisional independence appear to have fallen “out of vogue” in the selection of Immigration Judges at both the trial and appellate levels in the Trump regime’s DOJ.

Indeed, and shockingly to those of us in the Round Table of Former Immigration Judges, former Attorney General Jeff Sessions publicly emphasized that Immigration Judges should be “partners” with DHS enforcement while he spread false, unsupported narratives about widespread asylum fraud and “dirty” immigration lawyers. Many found these biased statements of expected “judicial subservience” to a highly politicized and controversial immigration enforcement agenda to be astounding, particularly since most of the “fraud” that has come to light recently relates to the regime’s inhumane treatment of asylum seekers and denial of their due process and legal rights to apply for protection in the United States. All of the actions to date by Attorney General Barr show that he shares the same biased, enforcement skewed view of the Immigration Courts as mere appendages of DHS enforcement as did his predecessor.

Judge Wendtland’s departure will be yet another blow to the few remnants of EOIR’s once proud, but now forgotten and despised, “vision” of “through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that’s now become a cruel joke for many endangered asylum seekers being rejected at our Southern Border without any semblance of fairness or due process whatsoever.

Thanks for your service, Judge Wendtland, and best wishes in the future.

 

PWS

01-16-20

 

 

 

LATEST BIA PRECEDENT COMBINES ABSURDITY WITH MISOGYNY – Divorced Woman Can Only Overcome “Public Charge” With Affidavit Of Support From EX-HUSBAND!” – MATTER OF SOTHON SONG, 27 I&N DEC. 488 (BIA 2018) – “Kangaroo Court” Continues To “Hop Along” At Expense Of Respondents, Common Sense, And Fundamental Fairness!

https://www.justice.gov/eoir/page/file/1112411/download

Matter of Sothon Song, 27 I&N Dec. 488 (BIA 2018)

BIA HEADNOTE:

An applicant for adjustment of status who was admitted on a K-1 visa, fulfilled the terms of the visa by marrying the petitioner, and was later divorced must submit an affidavit of support from the petitioner to establish that he or she is not inadmissible as a public charge under section 212(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4) (2012).

PANEL:  BIA APPELLATE IMMIGRATION JUDGES GREER & WENDTLAND, TEMPORARY APPELLATE IMMIGRATION JUDGE DONOVAN

OPINION BY: JUDGE LINDA WENDTLAND

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

Talk about standing rationality and public policy on its head!!

And, without knowledge of this counterintuitive interpretation, how would the respondent, who has already been divorced, comply with the suggestion that the divorce be structured in a manner that preserves the affidavit of support. As long as the affidavit of support complies with the legal requirements of willingness and ability to pay, what possible rational difference can it make who gives it?

Hopefully, somebody will take this to the “real courts.”

PWS

11-19-18

 

 

BIA’S LATEST ON CAT DETACHED FROM REALITY – MATTER OF J-R-G-P, 27 I &N DEC. 482 (BIA 2018)

3944_ed

Matter of J-R-G-P-, 27 I & N Dec. 482 (BIA 2018)

BIA HEADNOTE:

Where the evidence regarding an application for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988), plausibly establishes that abusive or squalid conditions

n pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient training and education, rather than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a sufficient likelihood that he or she will experience “torture” in these settings is not clearly erroneous.

PANEL: APPELLATE IMMIGRATION JUDGES GREER and WENDTLAND; CROSSETT, TEMPORARY APPELLATE IMMIGRATION JUDGE

OPINION BY: JUDGE ANNE GREER

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

BIA’S LATEST ON CAT DETACHED FROM REALITY – MATTER OF J-R-G-P, 27 I &N DEC. 482 (BIA 2018)

      • No dialogue, no dissent, on today’s BIA. And, yes, the reviewing courts have largely deferred to the BIA’s interpretation of “specific intent.” 
      • But, there are other plausible constructions that actually are more consistent with the purpose of the CAT to prevent the use of torture. In her dissenting opinion in Matter of J-E-, 23 I &N Dec. 291 (BIA 2002) my former colleague Judge Lory Diana Rosenberg set forth a “better view” (note, I also filed a vigorous separate dissenting opinion in J-E-):
        • “The majority’s reading of the regulations functionally converts the Senate understanding that torture must be specifically intended into a “specific intent” requirement. I disagree. I can find no basis to conclude that the Senate understanding was intended to require proof of an intent to accomplish a precise criminal act, as the majority contends is required. See Matter of J-E-, supra, at 301 (defining “specific intent”). Rather, the plain language of the text of 8 C.F.R. § 208.18(a)(5) reflects only that something more than an accidental consequence is necessary to establish the probability of torture. Id. (stating plainly that unanticipated or unintended pain and suffering that is severe enough to constitute torture is not covered). Moreover, 8 C.F.R. § 208.18(a)(4) states that a threat of infliction of severe physical pain or suffering may amount to torture.”
      • The J-R-G-P- opinion basically analogizes the intentionally pathetic efforts of the Mexican Government to deal with mental illness with the efforts of “poor countries like Haiti” at issue in Matter of J-E. 
        • But, Mexico is actually the 14th largest economy in the world (11th by consumer buying power); Haiti rates 141st. It appears Mexico in fact has more than adequate resources to deal with mental illness; it has just intentionally chosen not to do so, even knowing the severe harm constituting torture that choice intentionally inflicts on individuals.
      • The opinion also minimizes the evidence of the intentionally torturous conditions that exist in the Mexican institutional mental health system.
        • From the 2017 State Department Country Report on Mexico: Among the numerous human rights abuses: “lethal violence and sexual assault against institutionalized persons with disabilities;”
        • Here’s how the same Country Report addresses the specifically horrible treatment of institutionalized individuals with disabilities: “Abuses in mental health institutions and care facilities, including those for children, were a problem. Abuses of persons with disabilities included lack of access to justice, the use of physical and chemical restraints, physical and sexual abuse, trafficking, forced labor, disappearances, and illegal adoption of institutionalized children. Institutionalized persons with disabilities often lacked adequate medical care and rehabilitation, privacy, and clothing and often ate, slept, and bathed in unhygienic conditions. They were vulnerable to abuse from staff members, other patients, or guests at facilities where there was inadequate supervision. Documentation supporting the person’s identity and origin was lacking, and there were instances of disappearances.
        • As of August 25, the NGO Disability Rights International (DRI) reported that most residents had been moved to other institutions from the privately run institution Casa Esperanza, where they were allegedly victims of pervasive sexual abuse by staff and, in some cases, human trafficking. Two of the victims died within the first six months after transfer to other facilities, and the third was sexually abused. DRI stated the victim was raped repeatedly during a period of seven months at the Fundacion PARLAS I.A.P. and that another woman was physically abused at an institution in another state to which she was transferred.
      • Here’s the “real skinny” on how Mexico intentionally scrimps on budget and tortures those institutionalized for mental health disabilities: “THE NIGHTMARE THAT IS MEXICO’S MENTAL HEALTH SYSTEM byAriel Jacoby from Medelita (https://www.medelita.com) | Thursday, Jan 21, 2016 tags: features (https://www.medelita.com/blog/category/features)health-feat-img.jpg&url=https://www.medelita.com/blog/the-nightmare-that-is-mexicos-mental– system/)
        • Though there are an estimated 10 million people with mental, visual, hearing or motor disabilities living in Mexico, the country’s mental health system is so dysfunctional that the unlucky patients under its care are colloquially referred to as “abandanodos (http://abcnews.go.com/Health/mexican-psychiatric-institution-hell/story?id=12267276)” – abandoned ones.
        • It’s an accurate description for these lost souls. A 93-page report from Disability Rights International (http://s3.amazonaws.com/nytdocs/docs/526/526.pdf) revealed the horrific living conditions at Mexican mental health facilities, which are a breeding ground for human rights violations and abuse of the handicapped patients that these institutions are meant to help. Many patients never received a clinical diagnosis of their condition and don’t have families to give them private care – these patients remain locked inside the hospitals indefinitely and become completely anonymous to the world.
        • Patients rock back and forth in urine soaked clothes or walk about soiled, feces-smeared floors without shoes. Bedsheets are an uncommon luxury; hygiene is an abstract concept in a Mexican mental hospital where some “patients and their caretakers could not fully explain how or why they were institutionalized” (New York Times (http://www.nytimes.com/2010/12/01/world/americas/01mexico.html)). Without proper oversight and the absence of any sort of registry system, it is not uncommon for mentally ill children to literally disappear from Mexican mental health facilities with no record of their name, age, or families.
        • In this dismal hole of human despair, atrocities are ubiquitous and plentiful (http://www.ipsnews.net/2011/01/appalling-conditions-in-mexicos-mental-health-institutions/). Many of the patients in these institutions have been detained against their will for years and will likely languish inside the walls of these torture chambers until their death. Psychotropic drugs are excessively relied upon to treat patients and the more aggressive patients who don’t respond to medication can be subject to forced lobotomies, which need only the approval of the facility director. Eric Rosenthal, the director of Disability Rights International, found that 1/4 of the mental health facilities were keeping patients in restraints for extended periods of time – an act that violates Article 1 of the United Nations convention against torture.

 

          • The concept of human rights has no real meaning or significance in these unregulated, inhumane environments. The investigation conducted by DRI revealed the severity and frequency of human rights violations within the walls of such state-run facilities. In one institution, a terrified blind patient admitted to being raped by one of the staff members – a claim that was quickly dismissed  by Mexican officials. 
          • In another facility, investigators discovered two young women who had been institutionalized at a young age, grew up in the hospital, and had been working as unpaid laborers for years. There exists no record of how or why these women were institutionalized and Mexican law requires no legal review to detain them indefinitely as modern-day slave laborers.
          • The director of Samuel Ramirez Hospital, one of the 31 state-run mental health facilities in Mexico, calls his own hospital “hell” and has voiced his belief that the mental health of every patient at his facility have been made worse by their institutionalization. He blames the lack of proper funding and a deficiency of properly trained personnel – at a different mental institution nearby, there are only two psychologists and one doctor to treat the 365 patients who have been institutionalized there.
          • The sad state of Mexico’s mental health system can be traced back to its government’s complex and deep-rooted political issues. Mexico’s budget for mental health makes up about 2.5% of its overall health spending. This is an improvement from the paltry 1.6% allocated to mental health a decade ago, but still significantly lower than the WHO’s recommendation of 10%. Without a significant electorate of mental health advocates, mental health lacks any real political sway in Mexico. Back in 2006, Mexico was among 96 countries who ratified the United Nations Convention on the Rights of Persons with Disabilities (http://www.un.org/disabilities/default.asp? navid=13&pid=150). But it is clear that not much has changed within the system itself.

Bottom line: The BIA is using “legalese” to “normalize” sending an ill individual back to probable intentional torture in a “dismal hole of human despair.” After all, if being intentionally thrown in this kind of “torture chamber” by a country that has intentionally chosen to ignore, or in many cases aggravate, extreme human rights abuses, then who indeed could actually win protection under CAT? The message is clear — nobody! Use this case to deny ‘em all! Meet those quotas! Keep the assembly line moving!

Political officials of all Administrations have never been enthusiastic about complying with our international obligations under the CAT. Several Attorneys General, BIA Appellate Immigration Judges, and some Immigration Judges have found lots of creative ways to narrow the scope of protection, raise the standards of proof to near impossible levels, and to intentionally misconstrue country conditions against CAT applicants.

Undoubtedly, that gratifies and satisfies the desires of their political masters and handlers. Not surprisingly it comes as the Administration is denying access to asylum seekers and sending them into the CAT “reasonable fear” process.

What it doesn’t do is honestly live up to our solemn and binding international and human rights agreements, nor does it comply with Constitutional concepts of fundamental fairness and Due Process.

We need an independent U.S. Immigration Court System populated by Judges from diverse backgrounds with expertise in immigration and human rights laws, human empathy, and the courage and integrity to stand up for the full legal and human rights of the most vulnerable and endangered individuals in our legal system. Even when it could be “career threatening!”

PWS

11-16-18

 

BIA “JUST SAYS NO” TO “ONCE A UAC, ALWAYS A UAC” — Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018)

https://go.usa.gov/xPNUE

Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018)

BIA HEADNOTE:

An Immigration Judge has initial jurisdiction over an asylum application filed by a respondent who was previously determined to be an unaccompanied alien child but who turned 18 before filing the application.

PANEL:  BIA APPELLATE IMMIGRATION JUDGES COLE & WENDTLAND; JUDGE CROSSETT, TEMPORARY BIA APPELLATE IMMIGRATION JUDGE

OPINION BY:  JUDGE CROSSETT

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When I was a sitting Judge at the Arlington Immigration Court: 1) I generally accepted the DHS designation of who was a UAC; and 2) I followed the general maxim that “once a UAC, always a UAC.” Guess I was wrong on both counts. Interestingly, I don’t remember any real disputes between the ICE Assistant Chief Counsel and the private bar on these points. I guess times have changed (or my recollection has faded).

PWS

10-16-18

 

THE HONORABLE JEFFREY CHASE: HOW THE PERNICIOUS INFLUENCE OF JEFF SESSIONS IS STANGLING THE US ASYLUM SYSTEM AND ITS “GO ALONG TO GET ALONG” ADJUDICATORS AND “JUDGES” — “Matter of A-B- Being Misapplied by EOIR, DHS”

https://www.jeffreyschase.com/blog/2018/7/13/matter-of-a-b-being-misapplied-by-eoir-dhs

Matter of A-B- Being Misapplied by EOIR, DHS

One month after Attorney General Jeff Sessions issued his cruel, misguided decision in Matter of A-B-, we are seeing the first signs of how the decision is being implemented by the BIA, USCIS, and ICE.

There is no question that Sessions’ intent was to eliminate domestic violence and gang violence as bases for asylum.  How can I be so certain of this?  While Matter of A-B- was pending before him, Sessions told a Phoenix radio station in March: “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States.  Well, that’s obviously false but some judges have gone along with that.”   (here’s the link: https://ktar.com/story/2054280/ag-jeff-sessions-says-closing-loopholes-can-fight-illegal-immigration/).

However, Sessions chose to attempt to achieve this goal by issuing a precedent decision.  A decision is not a fiat.  It must be analyzed in the same manner as any other legal decision and applied to the facts accordingly.

Asylum experts and advocacy groups analyzing the decision have reached the following conclusions.  The main impact of Sessions’ decision is to vacate the Board’s 2014 precedent decision, Matter of A-R-C-G-, holding that a victim of domestic violence was eligible for asylum as a member of a particular social group.  Therefore, asylum applicants can no longer rely on that decision.

However, Sessions’ decision otherwise cobbled together already existing case law (which was taken into consideration in deciding Matter of A-R-C-G-), and added non-binding dicta, i.e. his statement that “generally, claims by aliens pertaining to domestic violence or gang violence…will not qualify for asylum.”  (Note the use of the pejorative “aliens” to describe individuals applying for asylum.)

Furthermore, most of the items covered by Sessions involved questions of fact (which are specifically dependent on the evidence in the individual case, and which the BIA and AG have very limited ability to reverse on appeal) as opposed to questions of law, which can be considered de novo on appeal and have more general applicability.  The questions of fact raised by Sessions include whether the persecutor was aware of the existence of the group and was motivated to harm the victim on account of such membership; whether the society in question recognizes the social group with sufficient distinction; whether the authorities in the home country are unable or unwilling to protect the victim, and whether the victim could reasonably relocate to another part of the country to avoid the feared harm.

So in summary, Sessions felt that the Board’s decision in Matter of A-R-C-G- did not provide a sufficiently detailed legal analysis, therefore vacated it, and laid out all of the legal analysis that future decisions must address.  Domestic violence and gang violence claims still remain very much grantable, provided that all of the requirements laid out by the Attorney General are satisfied.  Hearings on these cases may now take much longer, as testimony will need to be more detailed, additional social groups will need to be proposed and ruled on, more experts must be called, and more documents considered.  But nothing in A-B- prevents these cases from continuing to be granted.

Therefore, how discouraging that the first decision of the BIA to apply this criteria failed to do what is now required of them.  A single Board Member’s unpublished decision issued shortly after A-B-’s publication did not engage in the detailed legal analysis that is now warranted in domestic violence cases.  Instead, the decision noted that the case involved a social group “akin to the group defined in Matter of A-R-C-G-.”  The Board then found that the AG’s decision in A-B- “has foreclosed the respondent’s arguments,” because “the Attorney General overruled Matter of A-R-C-G- and held that it was wrongly decided.”

What is particularly dispiriting is that the decision was authored by Board Member Linda Wendtland.  A former OIL attorney whose views are more conservative than my own, I have always respected her scholarly approach and her intellectual honesty.  At the BIA, staff attorneys draft the decisions which the Board Members then edit.  Judge Wendtland always took the time to write her edits as academic lessons from which I always learned something.  She recently authored the lone dissenting opinion in a case involving a determination of whether a women was barred from relief for having provided material support to terrorists; Judge Wendtland correctly determined that the cooking and cleaning that the woman was forced to perform after having been kidnapped by rebels did not constitute “material support.”  It is therefore perplexing why she would sign the post-A-B- decision that so sorely lacked her usual degree of analysis.

In addition to the BIA, on July 11, both USCIS and ICE issued guidance on applying A-B- to asylum adjudications.  Much like the BIA decision, the USCIS guidelines to its asylum officers, which serve as guidance not only in adjudicating asylum applications, but also for making credible fear determinations, seem to apply the personal opinion of Sessions rather than the actual legal holdings of his decision.  USCIS decided to print in boldface Sessions’ nonbinding dicta that such cases will generally not establish eligibility for asylum, refugee status, or credible or reasonable fear of persecution.

Credible fear interviews are conducted right after an asylum seeker arrives in this country, while they are detained, scared, often unrepresented by counsel, before having a chance to understand the law or gather documents or witnesses.  The interviewer is supposed to find credible fear if there is a significant possibility that the applicant will be able to establish eligibility for relief at a future hearing before an immigration judge.  It is likely that, at such future hearing, the applicant will have an attorney who will make the proper legal arguments, call expert witnesses, formulate the particular social group according to the requirements of case law, submit other supporting evidence, etc.  But now asylum officers are being instructed to ignore all of that and deny individuals the chance to even have the opportunity to apply for asylum before an immigration judge essentially because Jeff Sessions doesn’t believe these are worthy cases.

ICE (through its Office of the Public Legal Advisor) has issued guidance that, while probably reflecting internal conflict within the bureau, is nevertheless somewhat more reasonable than the interpretations of either USCIS or the Board.  The ICE guidance does ask its attorneys to hold asylum applicants to some exacting legal standards, to look for flaws in supporting evidence, and to question asylum applicants in great detail.  It also asks its attorneys not to opine on whether gender alone may constitute a PSG until further guidance is offered (again, probably reflecting internal conflict within the bureau on the issue).  But the guidance does not simply conclude that all domestic violence and gang violence cases should be denied.  It even encourages attorneys to employ a “collaborative approach” by pointing out flawed social groups offered by pro se applicants in the hope that the IJ might help the applicant remedy the situation early on.

However, let’s remember that ICE stipulated to grants of asylum for victims of domestic violence in both Matter of R-A- (during the Bush administration, and to the consternation of then Attorney General John Ashcroft), and in Matter of A-R-C-G-.  ICE argued in its brief to Sessions in Matter of A-B- that Matter of A-R-C-G- was good law and should not be vacated.  So then shouldn’t ICE be applying these same principles to its guidance to attorneys?

It should also be noted that ICE and USCIS could see a way to granting worthy cases in spite of Sessions’ decision.  In the early 1990s, then INS General Counsel Grover Joseph Rees III took exception with the BIA’s precedent decision holding that forcible abortions and sterilization under China’s family planning policies did not constitute persecution on account of a protected ground.  Rees instructed his attorneys to seek to remand cases involving such claim to the INS Asylum Office, where per his instructions, such claims were granted affirmatively by asylum officers.  There is no reason that a similar practice could not be employed now, particularly as both ICE and USCIS are not part of the Department of Justice and therefore are not controlled by Sessions.  The only thing lacking is the political will to take such a stand.  In the early 1990s, Rees’s stance involving abortion played to the Bush Administration’s political base.  Today, ICE and USCIS would have to take action contrary to the wishes of that same base because doing so is the just and humane thing to do.  Unfortunately, based on the tone of their recent advisals, doing the right thing is not enough of a motive in the present political climate.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

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

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Jeffrey amplifies and provides a more scholarly perspective on the preliminary comments I had made after seeing the USCIS and ICE “interpretations” of Matter of A-B-. I hadn’t been aware of the unpublished BIA decision until Jeffrey brought it to may attention. But, given that Sessions “owns” the BIA (along with the Immigration Courts), blasted them in Matter of A-B-, and that the BIA has been cultivated since 2000 as a “go along to get along — your job is on the line every time you exercise truly independent judgment” organization, it’s not too surprising to us “Board Watchers” that at this point they would be rushing to “out-Sessions Sessions!”

I also share Jeffrey’s views on Judge Wentland: I’ve always admired her scholarship and her independent thinking. I thought of her as the “intellectual powerpack” of OIL during her tenure there. It is indeed sad to see that nobody seems willing to stand up for Due Process and the rights of asylum seekers on a body whose mission was supposed to “be the world’s best administrative tribunal guaranteeing fairness and Due Process for all.” How far away from that we have come in the perverted age of Sessions and Trump.

I also find it remarkable that having expressed his clear bias against asylum seekers and particularly those who are victims of domestic violence, in a non-judicial forum, Jeff Sessions is allowed to intervene in a (totally bogus) “quasi-judicial capacity” in the Immigration Court system. Obviously any individual Immigration Judge or BIA Appellate Immigration Judge who made such an outrageous public statement would be subject not only to disqualification from asylum cases, but also severe disciplinary action. Just another example of why the US Immigration Court system under Sessions is a farce and why we need an independent Article I Immigration Court! And, why Jeff Sessions was supremely unqualified for the position of Attorney General in the first place!

A grim time for America, refugees, Due Process, intellectual honesty, and human decency. History will record, however, who stood up to Trump, Sessions, and their racist/White Nationalist cabal and who “went along to get along.”

PWS

07-14-18

HON. JEFFREY CHASE: PUNISHING THE PERSECUTED — In Matter of A-C-M-, BIA “Adjusts” View Of FMLN As Necessary To Deny Asylum To El Salvadoran Refugees!

Punishing the Victims: Matter of A-C-M-

On June 6, the BIA published its precedent decision in Matter of A-C-M-.  As the Board seems to no longer issue precedent decisions en banc, the decision is that of a divided three-judge panel.  The two-judge majority found the respondent to be barred from asylum eligibility because in 1990, she had been kidnaped by guerrillas in her native El Salvador, who after forcing her to undergo weapons training, made her do the group’s cooking, cleaning, and laundry while remaining its captive.

In 2011, an immigration judge granted the respondent’s application for cancellation of removal.  The DHS appealed the decision to the BIA, which reversed the IJ’s grant, finding that the respondent was ineligible for cancellation under section 212(a)(3)(B)(i)(VIII), which makes inadmissible to the U.S. anyone who has received military-type training from a terrorist organization.  The BIA stated in its 2014 decision that it found the guerrillas to be a terrorist organization at the time of the respondent’s abduction in 1990.

The case was remanded back to the immigration judge, where the respondent then applied for asylum, a relief from which she was not barred by the military training.  However, the IJ ruled that she was ineligible for asylum under another subsection of the law, which bars anyone who commits “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” for either the commission of a terrorist activity, someone who has committed or is planning to commit a terrorist act, or to a terrorist organization or member of such organization.

The respondent in A-C-M- clearly wasn’t providing her labor by choice; she was forcibly abducted by the guerrillas and was then held against her will.  However, the BIA decided in a 2016 decision, Matter of M-H-Z-, that there is no duress exception to the material support bar.  Therefore, in the Board’s view, the involuntary nature of the labor was irrelevant.

In her well-reasoned dissent, Board Member Linda Wendtland acknowledged a critical question: “whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.”  Note that the statutory language quoted above requires that the actor “knows or reasonably should know” that the support will aid a terrorist activity or organization.

The decision doesn’t name the guerrilla organization (presumably the FMLN).  It also fails to mention when the Board itself concluded that the group had been a terrorist organization in 1990.  The Board’s view of the guerrillas was not always so, as witnessed in its 1988 precedent decision in Matter of Maldonado-Cruz.  The case involved an asylum-seeker from El Salvador who had been kidnaped by guerrillas in that country, given brief military training, and then forced to serve in the group’s military operations.  He managed to escape, and legitimately feared that if returned to El Salvador, he would be killed by death squads the guerrillas dispatch to punish deserters.

The BIA denied asylum.  In doing so, it expressed the following rationale: “It is entirely proper to apply a presumption that a guerrilla organization, as a military or para-military organization, has the need to control its members, to exercise discipline.”  The Board noted that the guerrillas needed non-volunteer troops to fill out the military units required to fight against the government. It continued: “To keep them as cohesive fighting units they must impose discipline; and an important form of discipline…is the punishment of deserters.”

The Board’s language in Maldonado-Cruz really does not sound as if it is describing a terrorist organization.  Frankly, it’s tone wouldn’t sound out of place in describing the penalties imposed by the Park Slope Food Coop towards members who miss their shifts.  If the Board didn’t contemporaneously view the guerrillas as terrorists, why would they expect the respondent to have done so?

Judge Wendtland did not need to answer that question, because she convincingly argued that the respondent’s cooking and cleaning did not constitute “material support” under the statute.  She is correct. Notice the examples of support contained in the statutory language: safe houses, funds, transportation, weapons, explosives, and training. All of these are of a quite different nature from cooking, cleaning, and doing laundry.

The respondent in A-C-M- was not someone whom Congress intended to exclude under the anti-terrorism provisions.  She did not provide money or weapons to ISIS to carry out terrorist acts. To the contrary, she performed labor completely unrelated to any violent objective.  She was forced to perform such labor – in the words of Judge Wendtland, “as a slave” – for a group whose terrorist nature was far from clear.

In adopting the two-member majority’s view, the Board has chosen an interpretation of the statute that turns Congressional intent on its head by punishing the victims of terrorism, and adds insult to injury by labeling these victims as terrorists themselves.  Hopefully, the lone dissenting opinion will prevail on appeal.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

3rd-Generation Gangs and Political Opinion

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

Blog     Archive     Contact

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The BIA has a long-standing history of finding ways to construe the law and facts to deny protection to refugees from Central America, one of the most violent areas in the world for decades.

Judge Linda Wendtland is one of the few BIA jurists since the 2003 “Ashcroft Purge” to stand up to her colleagues and  the Attorney General for the rights of Central American asylum seekers to fair treatment under the asylum laws.

As most of us familiar with Immigration Court and immigration enforcement know, the “material support” bar is very seldom used against real terrorists and security threats. Most caught up in its absurdly overbroad web are minor players — victims of persecution themselves or “freedom fighters” many of whom actually supported forces allied with or assisting the US Government.

Probably one of the biggest and most grotesque examples of “legislative overkill” in recent history. And, the BIA has made the situation much worse by construing the bar in the broadest, most draconian, and least reasonable way possible.

Moreover, the DHS waiver process is totally opaque compared with the Immigration Court process, thereby encouraging arbitrary and capricious decision-making that escapes any type of judicial review.

PWS

06-10-18

THREE FROM “TIRELESS TAL” @ CNN: 1) First, Salvadoran Women Was Forced To Perform Slave Labor By Salvadoran Guerrillas, Then The BIA Shafted Her; 2) Trump/Sessions Scofflaw Attack On “Sanctuary Cities” Stomped By Yet Another U.S. Judge; 3) GOP Continues Internal Immigration Negotiations!

http://www.cnn.com/2018/06/06/politics/woman-el-salvador-guerillas-ruling/index.html

 

Woman’s forced labor for Salvadoran guerillas means she must leave US, court rules

By Tal Kopan, CNN

She was kidnapped by Salvadoran guerillas three decades ago, watched her husband be killed and forced to cook and clean for the militants. Now she can’t stay in the US.

The main appellate body of the immigration courts issued a divided opinion Wednesday with broad implications, finding that a woman from El Salvador is ineligible for status in the US because her 1990 abduction and forced labor amount to “material support” of a terrorist organization.

According to the court documents, the woman was kidnapped by the guerillas in El Salvador and made to do the cooking and cleaning “under threat of death.” She was also “forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.”

Nevertheless, the 2-1 opinion holds that the woman’s coerced duties for the group constituted “material support” for a terrorist organization, and thus made her ineligible to be granted asylum or have her deportation order canceled in the US — though a lower court judge had ruled she would otherwise be eligible for such relief. The woman first came to the US illegally in 1991 but gained Temporary Protected Status — which is granted to countries that suffer natural disasters and other mass problems and was afforded to El Salvador for decades.

But she left the US and tried to return in 2004, when the government began deportation proceedings against her. Wednesday’s decision is the product of years of litigation regarding her case in the immigration courts — a judicial body for immigration-related claims run by the Justice Department.

Writing for the majority, Board of Immigration Appeals Judge Roger Pauley ruled that “material support” can be virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise would need to seek somewhere else.

“In fact, no court has held that the kind of support an alien provides, if related to promoting the goals of a terrorist organization, is exempt from the material support bar, and we discern no basis to import such a limitation,” Pauley wrote.

Pauley also concluded there was no exception for support given “under duress” under US law and the actions do not need to be “voluntary.”

Dissenting board member and Judge Linda Wendtland blasted the court’s interpretation, pointing out the relevant statute lists a number of examples of “material support” like offering safe houses, transportation, funds and other tangible furtherance of their mission.

“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. “Under the majority’s strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source.”

For the decision to be overturned, the woman in the case would have to appeal to a federal circuit court or succeed in persuading Attorney General Jeff Sessions — who serves as a functional one-man Supreme Court of the immigration courts — to intervene.

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Judge slaps Sessions, feds over ‘sanctuary cities’

By: Tal Kopan, CNN

A federal judge has once again rebuked the administration’s efforts to pressure so-called sanctuary cities, going further than any to date in using a recent Supreme Court decision to rule an existing federal law unconstitutional.

The ruling Wednesday from Judge Michael Baylson, a George W. Bush appointee, thus far applies only to his district in the Philadelphia area, but it could lay the groundwork for even more rulings that further limit what the administration can do to punish sanctuary cities — a key priority of the administration.

The decision relies, in part, on a May ruling from the Supreme Court on state gambling laws.

Baylson had already blocked the Justice Department from imposing new conditions on federal law enforcement grants that Philadelphia has received in the past, limiting his November ruling to the city, which had challenged the move by Attorney General Jeff Sessions. A federal judge in Chicago also has already blocked the new conditions nationwide, a ruling that was upheld in April by an appeals court. The effort from Sessions to impose the conditions had been an attempt to punish sanctuary cities after a federal judge in California had blocked the administration from pursuing broader funding threats.

More: http://www.cnn.com/2018/06/06/politics/sanctuary-cities-court-ruling-sessions-immigration/index.html

 

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House GOP immigration negotiations continue ahead of key Thursday meeting

By: Tal Kopan and Lauren Fox, CNN

House Republicans are bracing for a two-hour conference meeting Thursday morning on immigration, which could determine the fate of moderate members’ efforts to force a vote on several immigration bills.

“I think a lot of it hangs on that meeting tomorrow,” said Rep. Mia Love, R-Utah, who has signed a  House procedural maneuver — known as a discharge petition — that allows lawmakers to bypass leadership and force a vote on the floor if they can get a majority of members to sign on.

Ahead of that consequential gathering, the key leaders on the moderate and conservative sides of the issue were huddling with party leadership in Speaker Paul Ryan’s effort in hopes of reaching a consensus that could be presented to their colleagues in the morning.

On their way to the Wednesday meeting and earlier in the day, negotiators expressed optimism but were still far apart on the issue of establishing citizenship for recipients of the Deferred Action for Childhood Arrivals program.

More: http://www.cnn.com/2018/06/06/politics/immigration-daca-discharge-petition/index.html

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Tal’s range, depth, productivity, and readability are simply breathtaking! Don’t know how she does it, but I’m glad she does! I also love her description of Sessions as a “functional one-man Supreme Court.” Wish I’d thought of that one!

Thanks and kudos also to Tal’s terrific colleague Lauren Fox (below) who also is a “Courtside regular.”

PWS

06-06-18

STOMPING ON THE PERSECUTED! — BIA MAJORITY FINDS WAY TO USE “MATERIAL SUPPORT BAR” TO DENY PROTECTION TO THE VICTIMS OF PERSECUTION – Judge Linda Wendtland, Dissenting, Gets It Right! — Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018)!

MATTER OF ACM 3928_0

BIA HEADNOTE:

(1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.

(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.

PANEL:  BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, & WENDTLAND

OPINION BY: JUDGE ROGER PAULEY

CONCURRING & DISSENTING OPINION: JUDGE LINDA WENDTLAND

KEY QUOTES FROM MAJORITY:

The Immigration Judge incorporated by reference the respondent’s credible testimony and all the documents submitted at her cancellation of removal hearing. In her August 8, 2016, decision, the Immigration Judge found that the respondent is ineligible for asylum and withholding of removal based on the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act. The Immigration Judge stated that, but for the material support bar, she would have granted the respondent’s asylum application on humanitarian grounds pursuant to Matter of Chen, 20 I&N Dec. 16 (BIA 1989), noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed. However, the Immigration Judge granted the respondent’s request for deferral of removal pursuant to the Convention Against Torture.

KEY QUOTE FROM CONCURRING & DISSENTING OPINION:

In view of our relatively recent holding in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), that the material support bar contains no exception for duress, “it is especially important to give meaning to the statutory limit of ‘material.’ That term calls for [I]mmigration [J]udges, the Board, and the courts to strike a balance written into the Act.” Jabateh v. Lynch, 845 F.3d 332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in the judgment). Individuals arriving in this country from “some of the most dangerous and chaotic places on earth . . . may not have been able to avoid all contact with terrorist groups and their members, but we should not interpret the statute to exclude on this basis those who did not provide ‘material’ support to them,” since “[m]any deserving asylum-seekers could be barred otherwise.” Id. Unlike the majority, which apparently would apply the bar without any meaningful limit, I would not decline to carry out our responsibility to strike the foregoing critical balance.

Nor do I believe that Congress intended to relegate the respondent, who did not afford support that qualifies as “material,” to the statutory waiver process under section 212(d)(3)(B)(i) of the Act, which is intended only for those individuals whose support did meet the threshold materiality requirement.2 And given my view that the respondent’s conduct does not come within the “material support” bar in the first place, I need not reach the question whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.

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Once again, faced with competing possible interpretations of the law, the BIA majority chooses the interpretation most unfavorable to the applicant. So, what else is new?

The majority judges engage in a wooden, lifeless, hyper-technical analysis, devoid of any obvious understanding of either the purpose of refugee laws or the actual human situation of refugees. By contrast, Judge Wendtland shows an understanding of both the human situation of refugees and undesirability and impracticality of construing the law so as to bar deserving refugees or force them to “jump through more hoops.”

Everybody actually agrees that “but for” this obtuse application of the law, this respondent deserves asylum! So, why not just take the readily available course of construing the ambiguous provision in favor of the applicant?  Why go out of the way to create bad law and hurt innocent individuals? Why would Congress have desired this absurdly unpalatable result?  And, I wouldn’t count on the USCIS under the policies of this Administration to grant a waiver in this case under their even more opaque and politicized processes.

This case also demonstrates a continuing practice of the BIA to render major precedents without considering the case en banc. How many of the other Appellate Immigration Judges agree with Judge Pauley’s decision? How many agree with Judge Wendtland? On which side are Chairman Neal and Vice Chair Adkins-Blanch?

We’ll never know, because today’s Board imposes life or death decisions on respondents and changes the course of the law while allowing the vast majority the Appellate Immigration Judges to hide in anonymity in their “Ivory Tower” chambers, without any accountability or taking any legal or moral responsibility for the decisions that they impose on others. It’s a national disgrace (originating with the bogus “Ashcroft reforms”) that must be changed for the BIA to once again become a credible appellate tribunal.

Due process and fairness to individuals are fictions in today’s broken and biased U.S. Immigration Court system. We shouldn’t pretend otherwise!

PWS

06-06-18

 

Judge Patricia A. Cole Dissents From BIA Panel Majority’s Rewriting Of The Agfel Definition Of “Prostitution” To “Zap” Respondent – Majority “Dings Ding” in Matter of Ding, 27 I&N Dec. 295 (BIA 2018)

Matter of Ding

BIA HEADNOTE:

(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.

PANEL:  BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, WENDTLAND

OPINION BY: Judge Roger A. Pauly

DISSENTING OPINION: Judge Patricia A. Cole

KEY QUOTE FROM MAJORITY:

We disagree with the Immigration Judge and with the case law on which he relied because the term “prostitution” in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D). “It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Evntl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).

KEY QUOTE FROM DISSENT:

I respectfully dissent. I agree with the Immigration Judge’s decision that the respondent’s conviction is not for an aggravated felony under the existing Federal definition of “prostitution.” The majority has crafted a definition of prostitution for purposes of section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value. The majority decision concludes that this newly crafted definition categorically covers the conduct proscribed by the Wisconsin statute at issue in this case, but it notes that the precise contours of the term “sexual conduct” will be decided in future cases. This overly broad definition is supported by limited analysis, and it is contrary to immigration law, the law of the United States Court of Appeals for the Seventh Circuit, and the canons of statutory construction.

The majority does not provide any analytical authority for its definition other than noting that the definition is “similar” to that of Black’s Law Dictionary and providing, without any analysis, a survey of the definitions of “prostitution” from the 50 States and the District of Columbia in 1994. Additionally, the majority does not even discuss the ramifications of its new definition of prostitution for section 101(a)(43)(K)(ii) of the Act, which references the provisions of 18 U.S.C. §§ 2421, 2422, and 2423 (2012), which relate to engaging in “prostitution, or in any sexual activity.”

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Judge Cole’s dissent makes sense to me.  Nice to see that occasionally BIA Appellate Immigration Judges stand up for legal constructions that don’t invariably favor deportation of respondents who have been convicted of crimes.

While constructions of immigration statutes often divide Article III judges, all the way up to the Supremes, the BIA’s “Post Ashcroft Purge” jurisprudence has been intentionally bland and one-sided — largely without dissent or transparent deliberation. Moreover, as I have observed before, the BIA’s practice under the Ashcroft “Reforms” and the Obama Administration’s “Go Along to Get Along” approach has been largely to  issue published precedents by three-judge panels, rather than en banc.
This allows  80% of the BIA’s permanent judges to avoid expressing a view for against any particular precedent. Indeed, some BIA judges appear hardly at all on “precedent panels,” while others appear frequently. Thus, some BIA judges regularly avoid both possible controversy as well as accountability for their legal positions and votes on critical, life-defining issues. Rather a strange way for a so-called “expert deliberative tribunal” to operate, if I do say so myself.
PWS
05-23-18

NEW BIA PRECEDENT EXPLAINS WHY IN SOME CASES THE ATTEMPT MIGHT BE WORSE THAN THE CRIME – MATTER OF CERVANTES NUNEZ, 20 I&N DEC. 238 (BIA 2018)

3920

Matter of CERVANTES NUNEZ, 20 I&N Dec. 238 (BIA 2018)

BIA HEADNOTE:

The crime of attempted voluntary manslaughter in violation of sections 192(a) and 664 of the California Penal Code, which requires that a defendant act with the specific intent to cause the death of another person, is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2012), notwithstanding that the completed offense of voluntary manslaughter itself is not such an aggravated felony.

PANEL:  BIA Appellate Immigration Judges Pauley, Guendelsberger, Wendtland

OPINION BY: Judge Roger A. Pauley

KEY QUOTE:

“Although perhaps counterintuitive, we therefore hold that the respondent’s offense of attempted voluntary manslaughter under sections 192(a) and 664 of the California Penal Code is categorically a crime of violence under § 16(a). Unlike the completed crime of voluntary manslaughter under California law, which encompasses reckless conduct and is therefore not categorically a crime of violence under Ninth Circuit law, attempted voluntary manslaughter requires the specific intent to kill. Although “physical force” is not an express element of attempted voluntary manslaughter, we deem it evident under Ninth Circuit law that the offense, which requires a “volitional,” or intentional, mental state and contemplates a direct act on the part of the accused that is capable of causing the death of another person, inherently presupposes the use of “physical force.” Since the respondent’s offense necessarily involves the intentional use of physical force, it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a).”

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In this particular case, the respondent was convicted of both the completed crime of voluntary manslaughter and the attempt under California law. But, there could be cases where in negotiating a plea bargain, counsel would be better off from an immigration standpoint pleading her client to the completed crime, not the attempt.

PWS

03-18-18

 

NEW BIA PRECEDENT ON CONTROLLED SUBSTANCES – MATTER OF ROSA, 27 I&N DEC. 228 (BIA 2018) — We’re All Becoming Bit Players In A Continuous Performance Of “The Theater Of The Absurd!”

ROSA- 3919

Matter of ROSA, 27 I&N Dec. 228 (BIA 2018)

BIA HEADNOTE:

(1) In deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated felony drug trafficking crime under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.

(2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated felony drug trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under that provision.

PANEL: BIA Appellate Immigration Judges PAULEY, WENDTLAND, O’CONNOR

OPINION BY: Judge Linda S. Wendtland

CONCURRING OPINION: Judge Blair T. O’Connor

 KEY QUOTE FROM JUDGE O’CONNOR’S CONCURRING OPINION:

“So while I do not disagree with the point made by the majority and the DHS about avoiding absurd results, I unfortunately do not find it to be persuasive. This statement alone is a sad commentary on the state of affairs when it comes to making criminal law determinations in immigration proceedings and is an earnest call for a congressional fix to the mess we currently find ourselves in. See United States v. Fish, 758 F.3d 1, 17–18 (1st Cir. 2014) (collecting cases that call on Congress to “rescue the federal courts from the mire into which . . . [the] ‘categorical approach’ [has] pushed [them]” (quoting Chambers v. United States, 555 U.S. 122, 131–32 (2009) (Alito, J., concurring))); Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (noting the “continued congressional inaction in the face of a system that each year proves more unworkable”).

Finally, it bears noting that the Third Circuit has already found § 860 to be the proper Federal analogue to section 2C:35-7, albeit in an unpublished decision. See Chang-Cruz, 659 F. App’x 114. In that decision, the Government conceded that this was the case, and having lost the divisibility battle there, the DHS now seeks to use § 841 to argue that section 2C:35-7 is categorically an aggravated felony drug trafficking crime. Although I do not disagree with the majority that such an approach is permissible, I do so with reservations over how much more complicated categorical determinations may become for adjudicators who must now decide what is an “appropriate Federal analogue” and consider that analogue, or any permissible combination of such analogues, in discerning whether a State offense is a felony under the Controlled Substances Act. These determinations are difficult enough for an immigration system that is already overburdened. In the words of Justice Alito, “I wish them good luck.” Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).”

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Bottom line:

  • The respondent loses (of course);
  • The law is too complicated; and
  • Judge O’Connor thinks it should be unnecessary to go through all this rigmarole because this is a “bad guy” whom Congress clearly intended to kick out without recourse.

If anyone can explain the legal gibberish in this case further to me in plain English in 25 words or fewer, please do!

I get the point that the law has become too complex. But, this discussion seems to bypass the real problem in cases like this that has been “lost in space.”

How would an unrepresented, detained individual who doesn’t speak English properly defend him or herself in a case like this. The clear answer: they couldn’t, since even the “expert judges” in the Ivory (or Glass) Towers with their teams of cracker-jack law clerks are struggling with this stuff. Therefore, in the absence of counsel, appointed if necessary, these hearings before the Immigration Judges are nothing but judicial farces, theaters of the absurd, that mock due process and fairness and trample our Constitution. Samuel BeckettLuigi Pirandello, Friedrich Dürrenmatt, and friends would be proud of what’s been accomplished in our 21st Century immigration system!

That’s the problem to which both Congress and the Article III Appellate Courts need to wake up before it’s too late. In the meantime, please explain to me just how Sessions’s “pedal faster, schedule more, cut corners” approach to the Immigration Courts is helping to solve this problem?

PWS

03-14-18

 

IMMIGRANT PREVAILS AT BIA ON CIMT – NY Criminally Negligent Homicide Not a Categorical CIMT – Matter Of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017)

3906

Matter Of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017).

BIA HEADNOTE:

“Criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have a sufficiently culpable mental state.”

BIA PANEL: Appellate Immigration Judges COLE, PAULEY, and WENDTLAND.

OPINION BY: Judge Pauley

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PWS

10-17-17