"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
BIA Asylum Panel In Action. The BIA’s “take no prisoners” approach to asylum law has endangered asylum seekers lives without deterring them from applying! The BIA’s convoluted approach to asylum law is one factor making hearings for unrepresented applicants inherently unfair! Albrecht Dürer, Public domain, via Wikimedia Commons
BIA HEADNOTE:
If a persecutor is targeting members of a certain family as a means of achieving some
other ultimate goal unrelated to the protected ground, family membership is incidental or
subordinate to that other ultimate goal and therefore not one central reason for the harm.
Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reaffirmed.
1) In any “mixed motive” case, EOIR will find that the “non-covered motive” is primary and all others are “tangental” so that the claim will be denied.
2) EOIR will ignore “but for,” “proximate cause,” and any other established legal rules of causation to maximize asylum denials.
3) Facts are irrelevant unless they support denial.
In its rush to deny, the BIA basically invents a “presumption” that family based persecution is “tangential” to some other non-qualifying ground. The respondent then must “establish, by direct or circumstantial evidenc, that their family membership is more than incidental, tangential, superficial, or subordinate to other motives.”
When Congress added the “at least one central reason” language in 2005, they clearly intended to preserve a robust “mixed motive” doctrine by indicating that there could be “more than one” central motive. The BIA, however appears to be strangling the “mixed motive” language by intentionally, and often artifically, “subordinating” qualifying motives to non-qualifying ones!
And, of course, faced with a choice of adopting Circuit law that protects or that which rejects, the BIA invariably chooses the interpretation least favorable to the asylum applicant, as they did here.
I’m not the only member of the Round Table to remark on the BIA’s questionable performance.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Judge “Sir Jeffrey” Chase says:
“This holding is contrary to asylum law generally and to multiple Fourth Circuit holdings to the contrary. I would also argue that it contradicts Second Circuit case law, and the Supreme Court’s holding regarding the meaning of “on account of” in Bostock v. Clayton County.”
The poor performance of the BIA in establishing asylum precedents is a major contributing factor to disorder at the border and a dysfunctional, overly complicated, unduly restrictive, hopelessly backlogged, fundamentally unfair asylum adjudication system!
Hon. “Sir Jeffrey” Chase does the hard, dirty work of sifting through the legal muck for golden nuggets of hope and enlightenment! “The First Pan” By by W. Sihmedtgen. Public Realm
“Sir Jeffrey” writes:
In spite of the petition being denied, there is useful language on what constitutes persecution for a child, and in fn 6 on an IJ’s obligation to assist in delineating a PSG, whether or not the applicant is pro se.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Even when the final result passes Circuit review, the BIA’s too often sloppy “any reason to deny” approach should be of grave concern to all who advocate for due process and fundamental fairness for asylum seekers.
Hon. Cecelia M.Espenoza Former Appellate Immigration Judge, BIA; Member, Round Table of Former Immigration Judges Source: Denverdemocrats.orgHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
Hi all: The bipartisan Children’s Immigration Court bill that we endorsed was introduced today.
The press release of Sen. Michael Bennet included this quote from Cecelia!
“The most vulnerable people in immigration proceedings are unaccompanied children. The Immigration Court Efficiency and Children’s Court Act of 2023 not only improves the process for children, it also provides necessary support and guidance to the overburdened immigration court system to address the needs of these children,” said Cecelia M. Espenoza, Former Appellate Immigration Judge.
Thanks to Sen. Michael Bennett (D-CO), Sen. Lisa Murkowski (R-Alaska), Rep. Dan Goldman (D-N.Y.), Rep. Maria Salazar (R-Fla.), Rep. Hillary Scholten (D-MI), and Rep. Lori Chavez-DeRemer (R-OR)! This is long, long overdue! A great bipartisan idea! 😎
Rep. Hillary Scholten (D-MI) Credit: Ike Hayman SOURCE: Wikipedia
Rep. Hillary Scholten, the only former EOIR attorney in Congress, and an indefatigable advocate for good government, due process, common sense, and the well-being of children had this to say:
“Let’s be clear about one thing–infants and children should not be in a situation where they have to stand trial in immigration court,” said Scholten. “We have a deeply broken immigration system in this country. But as we continue the long and complicated work for repairing it, of fighting for justice in a political climate that has grown callous to the suffering of children, the next best option is creating a court that works to accommodate their unique needs. As a mom, I’ll never stop fighting for these vulnerable kids.”
Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”
The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.
Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.
He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.
At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.
“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.
. . . .
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.
But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.
“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.
Chase said the hearing appeared rushed, and he believes the case backlog played a role.
“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”
Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.
John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.
. . . .
*******************
Read Julie’s complete article at the link.
Hazaras are an historically persecuted group in Afghanistan whose already perilous situation has demonstrably worsened under the Taliban. See, e.g., https://www.ushmm.org/genocide-prevention/blog/urgent-action-needed-hazaras-in-afghanistan-under-attack. This case should have been a “slam dunk grant” under a proper application of precedents like Cardoza and Mogharrabi! Additionally, Hazara claims should be routinely grantable under the “pattern or practice of persecution” regulations that EOIR judges are supposed to apply (but seldom do).
No wonder this system builds incredible unnecessary backlogs when it botches the easy grants, wastes time on specious, disingenuous reasons for denial, and allows questionably-qualified judges to run roughshod over due process, the rule of law, and binding precedents.
Here’s additional commentary from “Sir Jeffrey:”
Thankfully, the amazing Steve Schulman at Akin Gump took on Mohamed’s case after his pro se hearing, and Human Rights First provided additional support.
(The Round Table was prepared to file an amicus brief on this one at the Fifth Circuit, but an agreement was reached to reopen the case at the IJ level before briefing was due.)
That the Government agreed to reopen this case basically “says it all” about the absurd result in the original hearing and the bogus “waiver” of appeal.
“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”
PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”
HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”
This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?
A federal judge ordered Texas to remove floating barriers in the Rio Grande and barred the state from building new or placing additional buoys in the river, according to a Wednesday court filing, marking a victory for the Biden administration.
Judge David Alan Ezra ordered Texas to take down the barriers by September 15 at its own expense.
The border buoys have been a hot button immigration issue since they were deployed in the Rio Grande as part of Gov. Greg Abbott’s border security initiative known as Operation Lone Star. The Justice Department had sued the state of Texas in July claiming that the buoys were installed unlawfully and asking the judge to force the state to remove them.
In the lawsuit, filed in US District Court in the Western District of Texas, the Justice Department alleged that Texas and Abbott violated the Rivers and Harbors Appropriation Act by building a structure in US water without permission from United States Army Corps of Engineers and sought an injunction to bar Texas from building additional barriers in the river. The Republican governor, meanwhile, has argued the buoys are intended to deter migrants from crossing into the state from Mexico.
Texas swiftly appealed the judge’s order.
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
*********************************
Read the rest of Priscilla’s report at the link.
Who knows how this will play out in the 5th Circuit and the Supremes, given the composition of those courts. But, at least for a day, Judge Ezra has brought some common sense and the rule of law to bear on out of control grandstanding Texas “Governor” Greg Abbott.
We should also remember that the vast majority of those whom Abbott and the nativists bogusly call “invaders” seek only to turn themselves in to U.S. authorities so they can exercise their clear legal rights to apply for asylum — rights that attach regardless of status or manner of entering the U.S. (Rights that also have improperly been diminished and impeded by the Biden Administration’s ill-advised asylum regulations, currently under legal challenge).
If successful (under a legal system intentionally rigged against them), these so-called “invaders” will use their skills and work ethic to expand our economy and help Americans prosper while saving their lives and those of their families. To anybody other than Abbott and other White Nationalists, that sounds like a potential “win-win” that could and should be “leveraged” for everyone’s benefit!
Judge Ezra’s opinion in the aptly-named U.S. v. Abbottcan be found here:
“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”
Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:
Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.
H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.
Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.
The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.
Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!
Experts find the BIA’s treatment of expert witnesses to be unduly harsh!Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
For Immigration Judges, country experts serve as the lens through which a confusing jumble of evidence becomes a clearer picture. No judge can be an expert on all countries; it is therefore by way of the country expert’s testimony that a determination can be made as to whether the asylum seeker’s predicament is a unique or a common one; a dispute is merely personal or possesses a political dimension; the home country’s government is truly likely to provide adequate protection; and why relocating within the country may or may not be reasonable.
However, Immigration Judges are provided remarkably little guidance on how to assess expert testimony. A 2020 decision of the U.S. Court of Appeals for the Ninth Circuit, Castillo v. Barr,1 illustrates the problem. In that case, both the Immigration Judge and the BIA chose to discount the testimony of a qualified country expert because his testimony was not corroborated by other evidence of record. As the Ninth Circuit noted, “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.”2 Obviously, this simple, logical rule should have been incorporated in a BIA precedent decision by now.
When attorneys SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire brought an appeal involving this issue with the U.S. Court of Appeals for the First Circuit, our Round Table of Former Immigration Judges was most happy to file an amicus brief in the matter. We used the opportunity to inform the court “how IJs and the BIA need, and lack, a clear standard for whether to admit—and how to weigh— expert evidence.”
Although the court issued an unpublished decision (and explained why it was precluded by Supreme Court precedent from establishing the uniform standard that we had requested), I believe the opinion offers wisdom on the topic that Immigration Judges might find useful in spite of its nonbinding nature. The case name is G.P. v. Garland, No. 21-2002 (1st Cir., July 13, 2023).
Rather than review the entire decision, in the hope of increased convenience, I have instead listed the issues raised in the case that are likely to arise in removal proceedings, and then summarized how the First Circuit addressed each issue.
The recency of the expert’s knowledge:
May an Immigration Judge discount an expert’s country knowledge as “stale” due to the passage of time since the expert’s last visit to the country in question or contact with its government’s officials?
In G.P., the court found no support for such approach where: (1) the record contained no evidence of changed conditions over the period of time in question; (2) the expert testified to the lack of significant changes in country conditions over that same time period; (3) such testimony regarding the lack of significant change went unchallenged by ICE, which did not call its own expert or offer other country evidence to the contrary; and (4) the conclusion was not contradicted by the petitioner.
The basis of the expert’s knowledge
Can an expert’s testimony be discounted for lack of firsthand “knowledge, research, or connections” to the country in question?
In G.P., the court pointed to the BIA’s own precedent decision in Matter of J-G-T- in which the Board adopted the Federal Rules of Evidence standard that an expert’s testimony is reliable when it is “`based on sufficient facts or data’ that the expert `has been made aware of or personally observed’ or from sources that `experts in the particular field would reasonably rely on.'”3
In addition to finding that the IJ had overlooked sources of firsthand knowledge, the court in G.P. found further error in the IJ’s failure to either mention or explain why sources that experts in the field would rely on that were mentioned by the expert in his voir dire, which included crime rates, DEA reports, and U.S. Department of State Country Reports, were not sufficient to credit the expert’s testimony.
The expert’s lack of personal knowledge of a specific criminal organization
Can an expert’s testimony be discredited where the expert lacked personal knowledge of the specific criminal organization that the applicant fears?
In G.P., the court found that the IJ erred in discounting the expert’s testimony for this reason. The court again referenced the Board’s statement in J-G-T- quoted above, and cited another BIA precedent, Matter of Vides Casanova, in which the Board held that an expert “need not have personal knowledge of the facts underlying” their opinion.4
Applying the above BIA guidance, the court observed that the expert witness learned specifics about the organization in question from reading the respondent’s affidavit, and importantly, that the facts contained in the respondent’s testimony and later testified to in court “were never challenged by the government or questioned by the IJ, who found G.P. credible.” The court added that “An expert cannot be ‘undermined by his reliance on facts . . . that have not been disputed’” (quoting from the Ninth Circuit’s decision in Castillo, supra at 1284).
The feared persecutors are based outside of the country of expertise
Can an expert’s testimony about a crime group based in the U.S. be discredited where the witness was qualified as an expert on organized crime in the Dominican Republic?
In G.P., although the group in question was based in New England, connected to a cartel based in Sinaloa, Mexico, and “served as a conduit between the Mexican drug cartels and customers in Northern New England,” the group did not fall outside of the witness’s area of expertise (i.e. organized crime in the Dominican Republic) where the expert testified to the Sinaloa Cartel’s strong presence in the Dominican Republic, influence over government officials there, and treatment of government cooperators.” The court therefore found that the IJ’s statement that the expert lacked direct knowledge of the criminal organization “mischaracterizes the evidence as a whole” and was not supported by substantial evidence of record.
Prior statements of the expert
How should a prior statement of the expert that is offered by ICE be treated by the IJ?
In G.P., ICE introduced a quote from the expert’s 2011 book in which he wrote that he “couldn’t honestly say that torture is something deportees [to the Dominican Republic] should expect.”
However, the First Circuit found error in the IJ’s reliance on the quote, because (1) the quote was in the context of an entirely different set of facts and employed a highly narrow definition of torture; (2) the expert was only asked whether he recalled the quote and to provide its context, and not whether he agreed with it; (3) the quote addressed the general risk of torture faced by deported noncitizens, and not the specific risk faced by G.P.; and (4) the IJ failed to explain why the 2011 book deserved significant weight when it was older than other evidence the IJ found to be stale.
Conclusion
Petitioner’s counsel has moved the First Circuit to publish the decision. But regardless of the outcome, counsel may wish to bring the court’s analysis to the attention of Immigration Judges, who in turn may find it highly useful in navigating the treatment of experts in cases before them.
– –
Hats off to SangYeob Kim and Gilles Bissonnette on their outstanding litigation in the First Circuit, which led to this satisfying decision. Our Round Table is most thankful to attorneys Adam Gershenson, Alex Robledo, Angela Dunning, Marc Suskin, Robby L.R. Saldaña, and Greg Merchant of the law firm of Cooley LLP, for their expert drafting of our amicus brief in this case.
Copyright 2023 by Jeffrey S. Chase. All Rights Reserved.
Notes
980 F.3d 1278 (9th Cir. 2020).
Id. at 1284.
Matter of J-G-T-, 28 I&N Dec. 97, 102 (BIA 2020) (quoting Fed. R. Evid. 702(b), 703).
Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015). Interestingly, in VIdes Casanova, the country expert had been called by DHS to establish that the respondent was a persecutor of others. Under those circumstances, the BIA in its decision noted that an expert “is permitted to base her opinion on hearsay evidence and need not have personal knowledge of the facts underlying those opinions.”
JULY 28, 2023
Republished with permission
*******************
The BIA spends far too much time cooking up bogus ways to deny asylum and other forms of protection. This leaves a “vacuum” on providing sound advice and needed guidance for effectively presenting and fairly analyzing the large untapped potential for more grants of protection currently “bouncing around the EOIR backlog” or alternatively being mindlessly rushed through “dedicated deterrence dockets” with neither time for advocates to properly prepare nor opportunity for thoughtful analysis by IJs! It’s a real (totally preventable) “lose-lose” for our justice system and asylum applicants!
Fortunately those from outside EOIR, including Article III Judges, subject matter experts like Judge Sir Jeffrey, and his loyal colleagues in the Round Table 🛡 have stepped in to fill the void. Wouldn’t it be better (and easier) to just aggressively recruit and hire the right expert, experienced, due-process-focused candidates for EOIR judgeships in the first place?
Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:
Hi all: As you know, our group filed an amicus brief in East Bay Sanctuary v. Garland, challenging the new rules at the border that would make most of those unable to get an online appointment through an app ineligible to apply for asylum.
District Court Judge Jon Tigar just issued the attached order granting summary judgment to plaintiffs and denying defendants’ motion for summary judgment.
From Judge Tigar’s order:
“Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with section 1158…Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158…
The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”
The order is stayed for 14 days to allow the government to appeal.
Our group has once again helped make a difference in providing fairness and due process. Congrats to all.
**********************
Congrats to the plaintiffs and to my Round Table colleagues!
This was basically a blowout for the plaintiffs on all issues! The USG argument essentially was that complying with the law would be too difficult and/or politically unpopular. Therefore, they have chosen to violate the law and to use rather transparent pretexts (actually misrepresentations about the bogus “presumption”) to evade it.
Really, folks, how do we have a Dem AG who 1) approves such complete legal nonsense; 2) advances essentially frivolous and disingenuous arguments in an attempt to defend the indefensible; and 3) can’t make the legal system for asylum work in a fair and legal manner at EOIR or DHS?
How immoral and intellectually dishonest are Garland’s arguments. Here’s one of my favorite passages from Judge Tigar’s opinion:
While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors.
See, e.g., PC 32446–68 (2022 State Department report noting credible reports of gender-based violence against migrants; reports of migrants being tortured by migration authorities; “numerous instances” of armed groups targeting migrants for kidnapping, extortion, and homicide; and that asylum seekers and migrants were vulnerable to forced labor); PC 22839–42 (NGO report documenting violent crimes against 13,480 migrants in Mexico, by both state and non-state actors, between January 2021 and December 2022); PC 76248–87 (table of crimes summarized in preceding report); PC 21752–58 (2022 NGO report discussing gender-based violence in northern Mexico border cities, including against LGBTQI+ and Black migrants); PC 21610–11 (2022 NGO report concerning gender-based violence against Venezuelan women and LGBTIQ+ migrants in southern Mexico).16
16 In addition to these examples, the record is replete with additional documentation of the extraordinary risk of violence many migrants face in Mexico. See, e.g., PC 22129–30 (2023 news report documenting instances of kidnapping of asylum seekers in northern Mexico); PC 23247–50 (2022 news report quoting Chihuahua state police chief stating that “organized criminal gangs are financing their operations through migrant trafficking”); PC 23082 (2023 NGO report discussing treatment of migrants and asylum seekers); PC 20937–43 (2021 NGO report documenting kidnapping and extortion of Venezuelan migrants in Mexico); PC 29740–29744 (2021 NGO report documenting instances of rape, kidnapping, and other violence experienced by migrant women in Mexico); PC 75946–48 (2022 NGO report documenting violence against migrants in Mexico); AR 4881 (2022 NGO report noting that asylum seekers from Central America have been pursued across the border and found in southern Mexico by their persecutors).
Only somebody who avoids the border, has never represented asylum seekers there, and is impervious to facts and reality could make such outlandish arguments in favor of an outrageously deficient and illegal “policy.” Sounds like something out of the “Stephen Miller Playbook!”Why is it coming from a Dem AG?
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR! Black Mauritanians and other asylum seekers of color find that the scales of justice are systemically weighted against them when on trial for their lives in AG Garland’s “courts!” Public RealmDanae King Faith & Values & Immigration Reporter Columbus Dispatch
“This data further confirms concerns raised about implicit racial and other bias in credibility determinations in US asylum adjudications,” the report states.
The report notes that Black asylum seekers face different treatment in the immigration system than others, including longer than average detention times, trouble finding accurate and adequate interpreters, different treatment in court, lack of access to counsel, purposefully rushed proceedings, biased judges, wrongful denial of asylum and more.
Lynn Tramonte has seen all those scenarios happen in Ohio.
“In immigration court, it’s almost like you’re guilty until proven innocent and they would rather err on the side of deporting a refugee who was tortured than granting asylum to someone who might be lying,” said Tramonte, director of the Ohio Immigrant Alliance, a group of Ohio immigrants and citizens who work to protect the dignity and rights of all through activism.
Nemecek has also seen judges and government attorneys “team up on (immigrants) and ask all kinds of questions and find them not credible.”
From 2002 to 2022, 713 Mauritanians went before immigration judges in Cleveland, and 443 were denied asylum. Another 28 had another form of relief, such as withholding of removal, and 242 were granted asylum, according to TRAC.
Tramonte wishes judges would do more research on the nations where asylum seekers are coming from.
“They have zero knowledge of documents from other countries or even what it’s like to be tortured,” she said.
A spokesperson for the Executive Office for Immigration Review (EOIR) disputed those claims.
. . . .
***********************
Read Danae’s full article at the link!
“Courtside” and others have been raising these issues for a long time! Yet, Garland has neither spoken out nor taken action to “clean up” courts that every expert would say are “broken” and need major changes, including better-qualified judges who have true expertise in asylum and human rights!
Assistant Attorney General for Civil Rights Kristen Clarke is totally “MIA” on this serious issue and on the racially-driven travesties in DOJ’s “wholly-owned” court system, in immigration detention centers, and at the Southern Border! Associate AG Vanita Gupta, once a civil rights icon, has “vaporized” on perhaps the biggest, potentially solvable, civil rights/racial justice issue facing America! What’s happening here?
I spent years doing Mauritanian asylum cases on the EOIR Ohio Docket (and, to a lesser extent, in the “Legacy” Arlington Immigration Court). Most were clear grants of asylum! Few were appealed by ICE! Almost none were reversed by the BIA! I doubt that conditions have improved materially since then.
Unfortunately, mistreatment of Black Mauritanian asylum seekers by EOIR is nothing new. It has a long and disreputable history going back decades.
In the late 1990’s, my now Round Table colleague Judge Lory Diana Rosenberg and I frequently dissented from wrong-headed denials of Mauritanian asylum claims by our BIA colleagues. See, e.g., Matter of M-D-, 23 I&N Dec. 1180, 1185, 1189 (Schmidt, Chairman, Rosenberg, Board Member dissenting), rev’d sub nom, Diallo v. INS, 232 F.3d 279 (2d Cir. 2000). There, the Circuit, in a decision written by Chief Judge Walker, agreed with many of the points raised by Judge Rosenberg and me in our respective dissents: “[T]he BIA failed to: (1) rule explicitly on the credibility of Diallo’s testimony; (2) explain why it was reasonable in this case to expect additional corroboration; or (3) assess the sufficiency of Diallo’s explanations for the absence of corroborating evidence.”
Judge Rosenberg and I were later “rewarded” by AG John Ashcroft by being “purged” from the BIA, along with a minority of other colleagues who had the temerity to stand up for the legal and human rights of migrants! Folks at EOIR “got the message” that standing up for immigrants’ rights and due process could be “career threatening!”
That, in turn, unleashed a crescendo of sloppy, anti-migrant, dehumanizing decisions emanating from EOIR. Things got so bad so fast that subsequent Bush II AGs Gonzalez and Mukasey were finally forced, under extreme pressure from the Article IIIs, to intervene and put a stop to the most glaring abuses.
But, in fact, the EOIR system never recovered from that debacle. From then on, the BIA has been largely a “captain may I rubber stamp” (credit “Sir Jeffrey” Chase) for DHS Enforcement and each Administration’s political agenda. It’s been a continuous downward spiral, with subsequent AGs either actively encouraging abuses of asylum seekers and other migrants or being “willfully indifferent” to the ongoing legal and human rights disasters on their watches.
It’s interesting how when the “powers that be” ignore abuses, they don’t go away. They just fester and get worse. Garland’s “what me worry” stewardship over EOIR is a classic example.
As for EOIR’s claim that they are providing IJs with “robust” asylum training, in the words of my friend, Kansas City attorney (and former Arlington intern) Andrea Martinez, “I call BS!” The proof is in the results!
My friend and Round Table colleague Judge “Sir Jeffrey” Chase puts it more elegantly:
In stating that the program is “robust” (i.e. fine as is), who among EOIR’s upper-level leadership is enough of an expert in the topic to make that determination? There are actually recent IJ hires with a great deal of expertise in asylum and CAT, but to my knowledge, they are not the ones creating or presenting the trainings.
EOIR’s asylum and CAT training remains insufficient, and the evidence of this can be found in the deluge of Circuit Court reversals, or even from simply reviewing hearing transcripts. Just compare the USCIS Asylum Officer training program with EOIR’s IJ training materials. A particular problem is the failure to properly train new IJs in the case law of the specific circuit in which they sit. Immigration Judges are largely left to their own devices to learn the law properly.
Another example of superior asylum training available “on the market” is that developed by Professor Michele Pistone (a true asylum expert who has taught and inspired generations of attorneys now serving in and out of government) at VIISTA Villanova. I am sure that EOIR could have arranged with Professor Pistone to create a “world class” asylum training program for both new and experienced IJs. Indeed, she would have been a logical choice for Garland to have recruited for a senior position at EOIR.
The talent to fix EOIR exists on the open market. However, EOIR can’t be fixed with the senior management team Garland has put, or in some cases left, in place.
In the meantime, the stunningly poor quality, blatant racial insensitivity, and inept judicial administration Garland tolerates at EOIR will continue to be a millstone around the neck of American Justice and the Democratic Party. To what depths Garland will drag both remains to be seen.
Garland’s dysfunctional and systemically biased Immigration “Courts” are a millstone around the neck for American Justice and Dems! Creative Commons license
Finally, where are progressive human and civil rights stalwarts like Sen. Corey Booker (D-NJ) on this issue? Why haven’t they demanded some accountability from Garland? And, whatever happened to our first African-American Veep Kamala Harris? Does she still exist? What’s more important than racial justice in “life or death courts” wholly controlled by her Dem Administration?
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
I’m sure many of you remember a childhood game called “Mother, May I?” An authority figure would say, “Jeff, take two giant steps forward!” But before doing so, the player would have to ask “Mother, may I?” Those two giant steps could only be taken if the response was “Yes, you may.” Otherwise, if the player took the steps, they were out.
If we were to take this game, direct the request and reply through an app called CBPOne, and make the stakes life or death, the result would be something very similar to the Biden Administration’s latest regulations governing asylum at the southern border.
The new rules are at odds with U.S. law. Congress has already authorized asylum seekers to take the necessary steps up to the border. The very first sentence of 8 U.S.C. § 1158 (the U.S. asylum statute) says that any noncitizen “whether or not at a designated port of arrival” and irrespective of their immigration status may apply for asylum.
And yet, not Congress but two Executive Branch agencies have now added a “Mother, May I?” type obstacle for those seeking to do what the law has long permitted. Under the new rules, the asylum seeker must first ask through a glitchy government phone app for specific permission (in the form of an appointment) before striding up to the border. Otherwise, the asylum seeker is simply not eligible for asylum, no matter how serious the danger they face if removed to their country.
How can Executive Branch agencies issue regulations that so directly contradict the statute those agencies are charged with enforcing? That question is the basis of a lawsuit filed by the ACLU, the National Immigrant Justice Center, and the Center for Gender and Refugee Studies in U.S. District Court.1
Our Round Table of Former Immigration Judges filed an amicus brief in support of petitioners’ arguments. We are in good company, as the USCIS asylum officers’ union filed a persuasive amicus brief as well.2 This means that groups representing the views of the only government officials authorized to decide asylum claims in this country (i.e. immigration judges and asylum officers) are united in opposing the new rule.
In our Round Table brief, we specifically take issue with the government’s false labeling of the new bar as merely a “rebuttable presumption” of asylum ineligibility.
Real rebuttable presumptions have long existed in our asylum regulations. For example, there is a rebuttable presumption that someone who has been persecuted in the past for reasons that give rise to an asylum claim may be persecuted again, unless major changes have since taken place in their country. There is also a presumption that one whose persecutor is the government of their country can’t find safety by simply relocating within that same country.
As you’ve probably noticed, there is a logic that flows in each of those examples from the known facts to the presumption. It is logical to assume that someone who was harmed before might be harmed again if conditions remain the same. The government may rebut the presumption by showing a fundamental change of the type that would put those fears to rest. There is a similar logic in concluding that a government’s reach extends throughout the country it governs. Again, the government may rebut that presumption through evidence establishing an exception to this general rule. In both of these examples, the fact established increases the likelihood of the fact presumed.
Now let’s return to the new rule. Say that a person faces brutal persecution on account of their political opinion if returned to their country. How does the fact that they couldn’t or didn’t get an appointment through a phone app in any way create a presumption that they are not in need of humanitarian protection? There can’t be a presumption if the fact established (i.e. that the person didn’t obtain an appointment through the app) is completely unrelated to the fact presumed (i.e. the person is not in need of asylum).
I believe it matters greatly whether the rule is considered a bar or a presumption. It is Congress that decides who may apply for asylum in this country. Thus, a regulation that admittedly creates a new bar to asylum (particularly where that bar is in direct contradiction to Congressional intent) is likely to be rejected as ultra vires by the courts. And in fact, a very similar bar to this one published by the Trump Administration was enjoined for just that reason.3 Agencies cannot usurp Congress’s role by legislating in the guise of rulemaking.
By attempting to disguise the new bar as merely a “rebuttable presumption,” the agencies seek to increase the odds of the ban passing muster this time. That is exactly the Department of Justice’s argument in its response brief: that its new rule is completely different from the prior administration’s “bar,” because according to DOJ, the new rule “does not treat manner of entry as dispositive, but instead creates a rebuttable presumption that can be overcome…”4
So the “Mother, may I?” regs clearly overstep the agencies’ legal authority. But do they create an equal barrier for all asylum seekers? The answer is no. As stated, the rules require one intending to apply for asylum to first obtain an appointment. Of course, there are more asylum seekers than there are available appointments. As mentioned, the government app through which one tries to secure an appointment, CBPOne, is full of glitches. As Prof. Austin Kocher recently noted, those glitches have impacted who gets those appointments:
the initial release of CBP One was accompanied by a variety of tech failures that did not necessarily undermine CBP’s ability to fill up its appointments calendar for asylum seekers but did create barriers to entry for migrants who were less tech savvy, could not access high-speed Internet, were part of larger families, or, either directly or indirectly, migrants who were darker-skinned or Black.5
That last point refers to the app’s problems with facial recognition that have caused it to reject applicants who are not white.6 As a result of these and other reported scheduling inequities, Sen. Edward Markey wrote to DHS back in February urging the agency to cease use of the app, due to its inaccessibility to many intending applicants, adding that “we cannot allow it to create a tiered system that treats asylum seekers differently based on their economic status — including the ability to pay for travel — language, nationality, or race.”.7
Instead of “ditching the app” as the Senator requested, the agencies instead added an exception to the bar if the noncitizen “demonstrates by a preponderance of the evidence that it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.”8
However, there is a big catch. Pursuant to the rule, this exception is only available to those without an appointment who make their claim at an actual port of entry. But observers at points of entry along the southern border report that “practices by U.S. and Mexican authorities restricted asylum seekers without CBP One appointments from physically reaching U.S. ports of entry to make protection requests.”9 So the exception written into the regs is not available in reality, as one seeking to claim it is restricted from reaching the port of entry where it must be claimed, and is barred from claiming the exception if they cross the border elsewhere.
If you’re wondering how the new system is working out, according to one report, it has resulted in asylum seekers on the Mexican side of the Laredo port of entry being robbed, kidnapped, and held for ransom.10 Another article described how some of those “lucky” enough to have obtained CBPOne appointments at Laredo claimed “that Mexican officials in Nuevo Laredo, across the border from Laredo, Texas, had threatened to hold them and make them miss their scheduled asylum appointments unless they paid them.”11 As a result, CBPOne appointments were temporarily suspended for the Laredo port of entry.
One excluded from asylum under these rules may still seek two types of lesser protections called withholding of removal.12 Oddly, under U.S. law, these alternative protections are much more difficult than asylum to qualify for, yet provide far fewer benefits. Asylum is an actual legal status which extends to the spouse and minor children of the asylee, allows for travel abroad, and puts recipients on a path to permanent residence and then citizenship in this country. By contrast, withholding of removal arises when an individual is ordered deported, and only blocks their deportation to a country in which persecution or torture is likely to occur, but otherwise leaves the recipient in limbo. The protection provides no path to family reunification or permanent status, and no right to travel abroad to visit the family members from whom the recipient is left indefinitely separated.
Nevertheless, withholding of removal does save lives. But not satisfied with simply barring asylum, the new regulations also make these lesser forms of protection far more difficult to access. This is because one must first pass something called a “credible fear interview” in order to even have the right to apply for withholding of removal in this country. As those interviews are conducted within days of the asylum-seeker’s arrival, in custody, often before the applicant has had the opportunity to obtain legal counsel or evidence, and possibly while suffering from the effects of persecution, the credible fear standard was intentionally designed to be a low one. The idea is to allow people who might genuinely be at risk the opportunity to fully develop their cases in a full removal proceeding, while only quickly removing those lacking legitimate claims.
But the new regulations raise the burden of proof by requiring the applicant at this very early stage to demonstrate a “reasonable fear” of persecution, which USCIS describes as the exact same standard required for a grant of asylum – i.e. “well-founded fear.13 Again, the lower credible fear standard being replaced was created solely because it isn’t reasonable to expect someone to prove more under the conditions faced by such recent arrivals. This intended safeguard has thus been completely undermined, as one who might only be a day or two in the country must now present a full-blown asylum claim just to earn the chance to have a hearing.
The new process requires non-lawyers to satisfy a complex legal standard they won’t understand, often without the time to seek legal advice or compile the evidence necessary to meet the heightened burden. I have no doubt that the process will result in genuine refugees being denied protection. And once again, the entire reason for placing applicants at such heightened risk is their not having obtained an appointment on a problematic phone app.
Why does the Biden Administration believe all this is necessary? In a recent column, Jamelle Bouie addressed the vows of some Republican presidential candidates to eliminate the constitutional right to birthright citizenship through executive order.14 In addition to presenting a compelling argument as to why this cannot legally be done, Bouie included in his column a wonderful quote from Frederick Douglass: “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”
In case the Biden Administration is wondering if it can champion that same sentiment today, in lieu of its convoluted attempt to ban protection to those deserving of it under our laws, the answer is: “Yes, you may.”
(Much thanks to attorneys Ashley Vinson Crawford and Steven Schulman of the law firm of Akin Gump for representing the group of former Immigration Judges and BIA Members on our amicus brief in East Bay Sanctuary.)
Copyright 2023, Jeffrey S. Chase. All rights reserved.
Notes:
East Bay Sanctuary Covenant v. Biden, No. 18-cv-06810-JST, N.D. Cal. (Filed May 11, 2023).
See Britain Eakin, “Asylum Officers, Ex-Judges Back Suit on Biden Asylum Rule,” Law360, June 8, 2023.
East Bay Sanctuary v. Barr, 964 F.3d 832 (9th Cir. 2020) (holding that the Trump Administration’s asylum bar was inconsistent with our asylum laws).
Defendants’ Reply Brief, East Bay Sanctuary v. Biden, (June 30, 2023) at 8.
Austin Kocher, “Glitches in the Digitization of Asylum: How CBP One Turns Migrants’ Smartphones into Mobile Borders,” mdpi.com, June 20, 2023, https://www.mdpi.com/2075-4698/13/6/149, section 4.
Melissa del Bosque, “Facial Recognition Bias Frustrates Black Asylum Applicants to US,” The Guardian, Feb. 8, 2023,
One form of withholding covers persecution for specified reasons; the other applies to torture.
See Asylum Officer Basic Training Course Lesson Plan, “Reasonable Fear and Torture Determinations,” (USCIS, RAIO, 2017) at 11 (“The ‘reasonable possibility’ standard is the same standard required to establish eligibility for asylum (the ‘well- founded fear’ standard).”)
Jamelle Bouie, “Opinion: What Frederick Douglass Knew That Trump and DeSantis Don’t,” NYT, June 30, 2023.
JULY 5, 2023
***********************
It’s an existential problem for our nation when a Dem Administration claims as “success:” failure to recognize the rights of asylum seekers, intentionally evading asylum law, and endangering the lives of asylum seekers!
Lest anyone think the confusion, unfairness, and disorder caused by the Biden/Harris failure to implement competent, professional, expert leadership on human rights is “overhyped,” here’s an “in person” report from Professor Lenni Benson of NY Law School, founder of Safe Passage Project, and a widely reknowned “practical expert” on asylum and human rights.
Professor Lenni B.Benson Distinguished Chair of Immigration and Human Rights Law New York Law School Founder, Safe Passage Project PHOTO: NYLS website
Sharing an excellent Blog post by retired IJ Jeff Chase on why the CBP One app may be endangering asylum applicants. See below.
Related to the CBP One app was a hearing I observed last Friday, June 30, 2023 in NY City.
A self-represented individual was asked by the IJ “were you admitted or inspected” by the government, the Respondent through a Mandarin interpreter said “Yes, through the CBP app.” The IJ paused. The OPLA attorney was visible on Webex. She was silent.
The IJ said “I will note your statement for the record, I find you removable as charged for not having been inspected or admitted.” [The Respondent had declined an opportunity to find an attorney.]
I am sure CBP will argue that entry under the app is not an inspection or admission and I haven’t looked carefully at the regulations but the issue is there to perhaps be litigated.
The other interesting twist in this particular case was that the government then told the Judge that she could see the Respondent had already completed biometrics and submitted an asylum application, but no application was in either her file nor the Court’s.
The IJ asked, do you have a copy?
The respondent: “On my phone.”
The IJ set a call-up date hearing to have the respondent print out the application and file it with the court in person.
I didn’t get a chance to speak to the Respondent, but I wondered if he had perhaps thought his interview with CBP was his asylum application or if he had filed affirmatively with USCIS.
Just sharing with this community.
Confusion abounds.
“Confusion abounds!” 🤯Why, rather than clarifying and applying the law, would the Administration intentionally create confusion and a host of unnecessary “litigatable issues?”
Why would they create delay by supposedly having applications for asylum “filed” but unavailable electronically to either ICE or EOIR?
Why didn’t the Administration recruit and hire real “practical experts” like Lenni Benson and her colleagues to straighten out the asylum system at the border, restore the rule of law, and reform and repopulate the critically important, currently dysfunctional, Immigration Courts and the BIA with well-qualified progressive judges, merit-selected experts in human rights and practical problem solving?
Pleased to join my friend “Sir Jeffrey” in giving a big “shout out” to our Round Table colleagues and superstar NDPA attorneys Steve Schulman, Ashley Vinson Crawford, and their pro bono team at Akin Gump for representing us on the amicus brief in East Bay Sanctuary!
*********************
Anybody naive enough to believe the “party line” from Administration wonks about “success at the border” should heed this “hot off the presses” report from Mica Rosenberg @ Reuters. It confirms the legal and humanitarian disaster at the border resulting from two plus years of mismanagement of asylum by Mayorkas, Garland, and the rest of the Biden immigration politicos who havefailed to undo the humanitarian and legal mess left behind by White Nationalist Stephen Miller and the rest of the Trumpist scofflaws!
Mica Rosenberg National Immigration Reporter, Reuters
Mica writes:
We examined the impact of the Biden administration’s new asylum regulation at the U.S.-Mexico border after it replaced the COVID-era Title 42 expulsion policy on May 11.
U.S. officials have said the regulation and other Biden immigration policies, that have opened new legal pathways to the US, have dramatically reduced the number of illegal border crossings.
But in the first month of the new policy, Reuters interviews with more than 50 migrants, U.S. and Mexican officials, a review of court records and previously unreported data found:
More than 100,000 migrants waiting in northern Mexico, many trying to snag an appointment on an oversubscribed government run smartphone app; a sharp drop in people passing their initial asylum screenings; more people in detention and tens of thousands of deportations.
My colleagues visited the mile-long migrant camp in Matamoros, across the river from Brownsville, Texas, where conditions are deteriorating, including cases of sexual assault in the camp, and we also spoke to a father who crossed the border but was speedily deported while his family was allowed into the US.
The report at the above link has many photos illustrating both the cruel stupidity of the Biden program and the amazing resilience of those still hoping, against the odds, to have their legal rights respected and protected by the USG.
Thanks, Mica, for “telling it like it is” and penetrating the “bureaucratic smokescreen” thrown up by the Administration to cover its misdeeds and human rights abuses!🤮
For my colleague Judge “Sir Jeffrey” Chase, Judge Maria Baldini-Potermin is the name that jumps out:
Maria T. Baldini-Potermin, Immigration Judge, Chicago Immigration Court
Maria T. Baldini-Potermin was appointed as an immigration judge to begin hearing cases in May 2023. Judge Baldini-Potermin earned a Bachelor of Arts in 1990 from the University of Dayton and a Juris Doctor in 1997 from the University of Minnesota Law School. From 2008 to 2023, she was the owner and managing attorney at Maria Baldini- Potermin and Associates PC in Chicago. During this time, from 2009 to 2023, she served as the author of “Immigration Trial Handbook,” a book she co-authored from 2008 to 2009. Also, from 2009 to 2021, she served as the update editor for “Immigration Law and Crimes” . From 2009 to 2021, she also served as a member of the board of directors of the National Immigration Project of the National Lawyers Guild, where she served as board chair and interim executive director in 2019. From 2007 to 2008, she was an associate immigration attorney at Gostynska Frakt Ltd., and from 2001 to 2007, at Scott D. Pollock and Associates PC in Chicago. From 1999 to 2001, she served as a National Association of Public Interest Law (NAPIL) Equal Justice Fellow with the Midwest Immigrant Rights Center (now National Immigrant Justice Center) in Chicago. From 1997 to 1999, she served as a NAPIL Equal Justice Fellow with the Immigrant Law Center of Minnesota (Oficina Legal) in Saint Paul, Minnesota. From 1996 to 1997, she served as an immigration law clerk at Guyton Law Office in Saint Paul, Minnesota. From 1994 to 1997, she trained law students at the Asylum Law Project in Minneapolis. From 1992 to 1994, she served as an accredited representative, and from 1991 to 1992, as a paralegal, with the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas. From 1990 to 1991, she served as a paralegal with the Brownsville Catholic Charities Canada Asylum Project in Brownsville, Texas. Judge Baldini-Potermin is a member of the Illinois State Bar and the Minnesota State Bar. She is admitted to practice before the U.S. Courts of Appeals for the Second, Fifth, Sixth, and Seventh Circuits, and the Supreme Court of the United States.
For me, it’s Judge Angela Munro whom I worked with on training for the Annual Conference during my time at EOIR:
Angela Munro, Immigration Judge, Boston Immigration Court
Angela Munro was appointed as an immigration judge to begin hearing cases in May 2023. Judge Munro earned a Bachelor of Arts in 2000 from Brown University, a Master of Arts in 2004 from the Fletcher School at Tufts University, and a Juris Doctor in 2008 from Northeastern University School of Law. From 2010 to 2023, she served as an attorney advisor at the Board of Immigration Appeals, EOIR. From 2008 to 2010, she served as a judicial law clerk at the Boston Immigration Court entering on duty through the Attorney General’s Honors Program. Judge Munro is a member of the Massachusetts Bar and the New York State Bar.
Another bio that caught my eye is Judge Hannah B. Kubica who once practiced at Joyce & Associates in Boston with my long-time friend and Round Table colleague Judge Bill Joyce.
Hannah B. Kubica, Immigration Judge, Boston Immigration Court
Hannah B. Kubica was appointed as an immigration judge to begin hearing cases in May 2023. Judge Kubica earned a Bachelor of Arts in 2005 from Vanderbilt University and a Juris Doctor in 2008 from the Villanova University Charles Widger School of Law. From 2016 to 2023, she was in private practice as an associate, and later as a senior associate, at McHaffey & Nice LLC in Boston where she represented noncitizens before EOIR and U.S. Citizenship and Immigration Services, Department of Homeland Security. During her time in private practice, she provided pro bono services at Rian Immigrant Center, formerly the Irish International Immigrant Center. From 2016 to 2011, she was in private practice as an associate at Joyce & Associates PC in Boston. From 2011 to 2008, Judge Kubica was in private practice at GNP Law Firm in the greater Boston area, and at Weir & Partners LLC in Philadelphia. Judge Kubica is a member of the Massachusetts Bar and the Pennsylvania Bar.
********************************
Congrats and good luck to all of the new Judges. Remember: The job is about due process, fundamental fairness, practical scholarship, and best practices, NOT “pleasing your handlers” or making DHS Enforcement happy!
We’re “making progress” in getting more NDPA practical scholars on the ImmigrationBench! But, we need even more to fundamentally change the culture at EOIR and to make due process the overriding mission, as it was supposed to be! So, NDPA’ers, keep those judicial applications coming!
Injustice Public Realm Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!
The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!
Based on all of the evidence as a whole, and in light of the applicable caselaw, Reyes-Hoyes has made a compelling case of persecution. Nevertheless, we find a remand is necessary because the BIA did not make a determination as to Reyes-Hoyes’s credibility. The BIA did not mention credibility in its decision or express any doubts about the truth of Reyes- Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s credibility, although he did not explicitly find her uncredible and ultimately stated he was not denying relief “based on a lack of sufficiency of proof.” However, the BIA did not adopt the IJ’s decision and thus did not incorporate any of the doubts the IJ had. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). If Reyes-Hoyes is credible, she has shown persecution, but the credibility determination must be made by the factfinder, not by this court on appeal. See 8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Olivia v. Barr, 954 F.3d 757, 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated in part, and we remand to the BIA for a determination on credibility.
. . . .
In sum, we conclude that, if Reyes-Hoyes is credible, the record compels the conclusion that Reyes-Hoyes suffered harm rising to the level of past persecution, but we remand for the BIA to consider her credibility in the first instance. We also conclude that the record compels the conclusion that safe internal relocation to parts of Guatemala—Mesata and Raul—was not possible. Additionally, we hold that the BIA procedurally erred in the remainder of its analysis concerning whether internal location was reasonable and whether Reyes-Hoyes had shown state action by not meaningfully considering the relevant substantial evidence.
. . . .
**************************
Here is my immediate reaction when Dan Kowalski at LexisNexis sent me the decison:
Wow! This is an EOIR/OIL error fest — replete with misrepresentations and mischaracterizations! Totally sloppy work! Why won’t they publish this? It’s a perfect example of how Garland has failed to get the job done!
And, here’s the reaction from my friend and Round Table Colleague “Sir Jeffrey Eagle Eyes” Chase:
24 pages; very detailed analysis of recurring asylum issues. Should certainly have been published.
BTW, please note footnote 9, an example of the ongoing problem with the government’s online regs continuing to list the enjoined “death to asylum” regs that the previous administration tried to push through. The Fifth Circuit continues to believe that the internal relocation reg was amended effective January 19, 2021. Have cases been decided based on this erroneous belief?
Lest you doubt the “complete FUBARness” of EOIR, check these out:
Worst of all the small and mid-sized agencies ranked;
While the “curve” for “subagencies” has gone up since 2007, EOIR’s score has cratered, plunging dramatically during the Trump years;
EOIR ranked at or near the bottom on key metrics, including, significantly, “leadership style” (some of the “credit” for this abysmal score should go to DOJ, which has failed to provide dynamic, due-process-oriented leadership over the last six years);
GAO study just cited EOIR for a number of management deficiencies including “blowing off” “our [GAO’s] 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so—even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”
The NAIJ continues to raise technology and health and safety defects with EOIR “management;”
Notably, during this period of abject failure, EOIR has found time and resources to waste (and potential “goodwill” to squander) on unneeded nonsense like “IJ Dashboards,” “production quotas,” “expedited dockets,” more layers of bloated headquarters bureaucracy, and, perhaps the biggest boondoggle of all, a totally absurd and duplicative “Office of Policy” for an agency that has demonstrated a disturbing inability to carry out its “core function:” Providing Due Process for all through fair, timely, expert, correct adjudications!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — As Dems founder in their commitment to restore justice, could new Immigration Judges from the NDPA — unswervingly committed to due process, fundamental fairness, and best practices — get this poor little fella back on his feet and improve the culture and atmosphere at the “retail level” of EOIR, even in the face of indifference and incompetence from those in charge? Lives and futures — perhaps the future of our democracy — are at stake!
What we really need is a “lean, not mean, due process machine” @ EOIR. Why can’t the Dems deliver? That’s the age-old question among human rights experts!
