BIA EXPOSEE: DID THE BIA SUPPRESS EVIDENCE IN MATTER OF J-C-H-F- THAT WOULD HAVE DIRECTLY UNDERMINED THEIR ANTI-IMMIGRANT RULING? — HON. JEFFREY CHASE THINKS SO, & HE HAS THE EVIDENCE TO BACK UP HIS CHARGE!

https://www.jeffreyschase.com/blog/2018/3/2/matter-of-j-c-h-f-an-interesting-omission

 

Mar 2 Matter of J-C-H-F-: An Interesting Omission

In its decisions involving claims for protection under Article III of the U.N. Convention Against Torture, the BIA defines “government acquiescence” to include “willful blindness” by government officials.

In its recent decision in Matter of J-C-H-F-, the BIA addressed the criteria an immigration judge should use in assessing the reliability of a statement taken from a newly-arrived non-citizens at either an airport or the border. The BIA largely adopted the criteria set out by the U.S. Court of Appeals for the Second Circuit in its 2004 decision in Ramsameachire v. Ashcroft.

Ramsameachire set out four reasonable factors for consideration: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the respondent’s statements; (2) whether the questions asked were designed to elicit the details of the claim, and whether the interviewer asked follow-up questions to aid the respondent in developing the claim; whether the respondent appears to have been reluctant to reveal information because of prior interrogation or other coercive experiences in his or her home country; and (4) whether the responses to the questions suggest that the respondent did not understand the questions in either English or through the interpreter’s translation.

Both the Second Circuit in Ramsameachire and the BIA in J-C-H-F- applied these criteria to the statement in question in their respective cases; both found the statement reliable, which led to an adverse credibility finding due to discrepancies between the statement and later testimony. But there is a big difference between the two cases. Ramsameachire was decided one year before the U.S. Commission on International Religious Freedom (USCIRF), which is part of the U.S. government, published the first of its two reports (in 2005 and 2016) assessing the expedited removal system in which Bureau of Customs and Border Patrol (CBP) officers encounter arriving asylum seekers. USCIRF conducted field research over several years before issuing each report. As I wrote in an earlier blog post summarizing these reports, USCIRF’s first recommendation to EOIR was to “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.”

As I already noted in my prior post, USCIRF described its findings of the airport interview process as “alarming.” It found that the reports were neither verbatim nor reliable; that they sometimes contained answers to questions that were never asked, that they indicate that information was conveyed when in fact it was not. USCIRF found that although the statements indicated that they were read back, they usually were not, and that a CBP officer explained that the respondent’s initials on each page merely indicated that he or she received a copy of each page, and not that the page was read back to the respondent and approved as to accuracy.

The Second Circuit in Ramsameachire would have no way of knowing any of this, and therefore reasonably considered the statement to be a verbatim transcript which had been read back to the respondent, whose initials on each page were deemed to indicate approval of the accuracy of its contents. But the BIA in 2018 could claim no such ignorance. USCIRF had specifically discussed its reports at a plenary session of the 2016 Immigration Judge Legal Training Conference in Washington D.C., where the report’s co-author told the audience that the statements were not verbatim transcripts in spite of their appearance to the contrary. As moderator of the panel, I pointed out the importance of this report in adjudicating asylum claims. The person in charge of BIA legal training at the time was present for the panel, and in fact, had the same panelists from USCIRF reprise its presentation two months later at the BIA for its Board Members and staff attorneys. I personally informed both the chair and vice-chair of the BIA of the report and its findings, and recommended that they order a hard copy of the report. The report was even posted on EOIR’s Virtual Law Library, which at the time was a component of the BIA, under the supervision of the vice-chair (along with training and publication). I can say this with authority, because I was the Senior Legal Advisor at the BIA in charge of the library, and I reported directly to the BIA vice-chair.

In spite of all of the above, J-C-H-F- simply treats the statement as if it is a verbatim transcript, and noted that the pages of the statement were initialed by the respondent; in summary, the Board panel acted as if the two USCIRF reports did not exist. Very interestingly, sometime in 2017, the USCIRF report was removed from the EOIR Virtual Law Library. Based on my experience overseeing the library, I can’t imagine any way this could have happened unless it was at the request of the BIA vice-chair. But why would he have required the report’s removal?

If any reader has information as to when J-C-H-F- was first considered for possible precedent status by the BIA, please let me know via the contact link below.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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I can largely corroborate what Jeffrey is saying. I, of course, have been gone from “The Tower” for 15 years.

But I know 1) that BIA judges and staff were present during the USCIRF sessions at the Annual Immigration Judges Conference (in fact, I believe it was “required training” on religious asylum claims), 2) as an Immigration Judge I had access to the Annual Reports of the USCIRF and used them in my adjudications; 3) I was well aware, and believe that any competent EOIR judge would also have been aware, that airport statements and statements taken by the Border Patrol were a) not verbatim, and b) often unreliable for a host of reasons as pointed out by the USCIRF.

I am certainly as conscious as anyone of the precarious positions of BIA Appellate Immigration Judges as administrative judges working for the Attorney General. I’m also very well aware of the human desire for self-preservation, job preservation, and institutional survival, all of which are put in jeopardy these days by siding with immigrants against the DHS in the “Age of Trump & Sessions,” where “the only good migrant is a deported migrant.”

But, the job of a BIA Appellate Immigration Judge, or indeed any Immigration Judge, is not about any of these things. It’s about “guaranteeing fairness and due process for all.”

That means insuring that migrants’ rights, including of course, their precious right to Due Process under our Constitution, are fully protected. Further, an EOIR judge must insure that the generous standards for asylum set forth by the Supreme Court in Cardoza-Fonseca and by the BIA itself in Matter of Mogharrabi are fully realized, not just “rote cited.”

If standing up for migrants’ rights turns out to be job threatening or institutionally threatening, then so be it. Lives are at stake here, not just senior level US Government careers, as important as I realize those can be!

Unfortunately, I think today’s BIA has become more or less of a “shill” for the enforcement heavy views of Jeff Sessions, DHS, the Office of Immigration Litigation, and the Trump Administration in general.

What good is “required training” in adjudicating asylum requests based on religion if the BIA and Immigration Judges merely ignore what is presented? It isn’t like DHS or CBP had some “counterpresentation” that showed why their statements were reliable.

Indeed, I had very few DHS Assistant Chief Counsel seriously contest the potential reliability issues with statements taken at the border. And never in my 13 years on the bench did the DHS offer to bring in a Border Patrol Agent to testify as to the reliability or the process by which these statements are taken.

I can’t imagine any other court giving border statements the weight accorded by the BIA once the problems set forth in the USCIRF Report were placed in the record. And, I’m not aware that the DHS has ever set forth any rebuttal to the USCIRF report or made any serious attempt to remedy these glaring defects.

We need an independent Article I United States Immigration Court that guarantees Due Process and gives migrants a “fair shake.” Part of that must be an Appellate Division that functions like a true appellate court and holds the Government and the DHS fully accountable for complying with the law.

PWS

03-03-18

INSIDE EOIR: THE REEMERGENCE OF “THE GREAT SANTORINI” – Could Judge Chris Santoro’s Reputed Takeover Of The Law Library and Training Functions At Headquarters Be Some Good News For A Beleaguered Court System & Its “Customers?”

It’s been a tough year for EOIR, the agency of the U.S. Department of Justice that oversees the U.S. Immigration Court system. (Although, admittedly, probably not as tough for EOIR as for the many individuals forced to count on EOIR for potentially life-saving due process who were short-changed and the often disrespected attorneys representing, or trying to represent, them.)

 

The backlog has continued to mushroom to more than 640,000 cases with no end in sight; new Immigration Judge hiring and courtroom expansion continued to lag; e-filing remains a pipe dream; recently retired former Director and BIA Chair Juan Osuna died suddenly and unexpectedly; and a new Attorney General took office who apparently views the Immigration Courts not as a “real” judiciary charged with acting independently to protect the due process and other legal rights of migrants, but rather as a mere “whistle stop on the DHS deportation express.”

 

But, at least some good news could be in the offing. Reportedly, Judge Christopher A. “The Great Santorini” Santoro, who currently serves as the Acting Chief of Staff for the Acting Director of EOIR, Judge James McHenry, will assume overall responsibility for the BIA’s Law Library (which includes the highly-regarded “Virtual Law Library”) and the Judicial Training Program. Both important functions will be “relocated” to the Office of Policy in the Director’s Office.

 

Judge Santoro served as the Assistant Chief Immigration Judge for the Arlington Immigration Court during some of my tenure there and later went on to be an Acting Deputy Chief Immigration Judge before mysteriously disappearing for a time into the bowels of the EOIR bureaucracy (becoming essentially a “bureaucratic non-person” – off the organizational “depth charts”). He subsequently was “rehabilitated” and reappeared last spring when Acting Director McHenry appointed him Acting Chief of Staff.

 

Judge Santoro has a stellar reputation for hard work, efficiency, sound administration, and creative problem solving. In Arlington, he was viewed as a “trial judges’ judge” who devoted himself to supporting the judges and resolving problems while not interfering with the things that were working.

 

He also provided unprecedented feedback and guidance about what was “really happening at The Tower” – normally a “dark hole” for field judges. During my illness, he, along with my colleagues Judge Roxanne Hladylowicz and Judge Robert Owens, pitched in and handled some of my Master Calendars so they didn’t have to be rescheduled. I always found him to be totally supportive and responsive, as well as a great colleague. He cared deeply about and paid attention to the hard-working and underappreciated court staff. He is known as a manager who in the words of one former employee will likely “put competent people in charge and let them do their jobs.”

 

The Law Library has been under the outstanding leadership of Head Law Librarian Karen L. Drumond dating back to my tenure as BIA Chair (1995-2001). The upgrading of the Law Library, hiring of additional staff, and the creation of the Virtual Law Library were carried out with the encouragement and enthusiastic support of then-Director (and later BIA Member) Anthony C. “Tony” Moscoto. Tony correctly envisioned changing the previously, rather ignored, BIA Law Library into a major research aid for the Immigration Judiciary as well as a help to the public and a repository for certain historical materials about the BIA and EOIR’s history.

 

The Virtual Law Library, in particular, has been widely acclaimed as an important research tool in the world of immigration law. I still use the public version on a regular basis and recommend it to my students and others as a great resource!

 

Assistant Chief Judge Jack Weil has very capably managed the EOIR Judicial Training Program for years. However, despite Judge Weil’s best efforts, training too often fell victim to budget shortages or other bureaucratic impediments. Unfortunately, it has been, quite incorrectly, considered a “low priority” within the bureaucracy.

 

Immigration Judge Training hit bottom this past year when the incoming Administration without explanation cancelled critical in–person nationwide training for Immigrating Judges — the only real CLE and training that most Judges receive during the year. This was notwithstanding the arrival of many newly hired Immigration Judges who have never had a chance to attend a nationwide training conference or, indeed, even to meet the vast majority of their judicial colleagues!

 

I know that Judge Santoro takes legal research, professional excellence, fairness, and training very seriously. Indeed, while at the Office of Chief Immigration Judge he “directed” several “new judge training videos” with an all-star cast including some of our multi-talented former Arlington Judicial Law Clerks.

 

Generally, I interpret bringing the Law Library and Judicial Training functions under the Director’s Office and selecting a “total judicial management pro” like Judge Santoro to lead them as a positive sign for EOIR and the immigration world. Hopefully, the Law Library and Judicial Training will prosper and expand under Judge Santoro’s leadership to meet the challenges of the 21st Century.

 

“Job One” at EOIR is NOT about removing migrants at record paces, denying more asylum applications, or deterring future migrants. No, it’s all about fairness, scholarship, timeliness, respect, teamwork, and delivering Due Process and even-handed justice to some of the most vulnerable individuals in America.

Currently, EOIR is failing to discharge its critical duties to guarantee fairness and due process in the manner one would expect from one of the largest, perhaps the largest, and most important Federal Court systems. Hopefully, Judge Santoro will be part of the solution to the problems facing EOIR and those whose lives and futures depend on it.

PWS

11-29-17