MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!

https://www.reuters.com/investigates/special-report/usa-immigration-asylum/

Mica Rosenberg, Read Levinson, & Ryan McNeill report:

“They fled danger at home to make a high-stakes bet on U.S. immigration courts

Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.

Filed

OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.

They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.

Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.

Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.

That’s when their fates diverged.

Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.

The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.

Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.

The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.

Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.

Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.

In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.

Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.

Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.

The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.

The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.

About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.

“GROSS DISPARITIES”

Of course, other factors influence outcomes in immigration court.  For example, U.S. government policy is more lenient toward people from some countries, less so for others.

Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.

Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.

The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors.  The longer a judge has been serving, the more likely that judge is to grant asylum.

“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco

The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.

“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.

Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.

Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.

Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.

The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.

The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.

Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)

In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”

Video: High-stakes game of chance in U.S. immigration courts

CRISIS AT THE BORDER

In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.

Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.

Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.

Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.

The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.

Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.

The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.

“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”

The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.

One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.

“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.

“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”

She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.

“NO POLICE HERE”

Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.

Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”

Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”

The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”

Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.

There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.

After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.

Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.

“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”

Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.

Volunteer lawyers helped the women prepare and submit their applications for asylum.

In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.

“ASYLUM FREE ZONES”

Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.

People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.

The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.

The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”

Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.

The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.

In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.

In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.

From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.

The agency does not identify judges who were the subjects of complaints.

Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”

DAY IN COURT

Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.

In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.

Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.

In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.

After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.

Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.

Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness.  As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.

Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”

The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.

Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”

“SOMEONE WANTS TO KILL THEM”

Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”

Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.

Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”

Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.

Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.

In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.

Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.

Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.

“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”

Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.

The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.

Additional reporting by Gustavo Palencia and Kristina Cooke

U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.

More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.

The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.

The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.

Reade Levinson

Heavy Odds

By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco

Data: Reade Levinson and Ryan McNeill

Graphics: Ashlyn Still

Photo editing: Steve McKinley and Barbara Adhiya

Video: Zachary Goelman

Design: Jeff Magness

Edited by Sue Horton, Janet Roberts and John Blanton”

Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.

Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:

http://www.reuters.com/trump-effect/immigration

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

Great reporting by Mica and her team!

Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”

It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.

PWS

10-17-17

 

COURTSIDE BRINGS YOU “LAW YOU CAN USE!” – Hon. Jeffrey Chase Tells “Do’s and Don’t’s” Of Challenging CREDIBILITY On BIA Appeals! EXTRA BONUS! NEW PWS COMMENTARY: Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

 

https://www.jeffreyschase.com/blog/2017/10/12/challenging-credibility-findings-before-the-bia

Jeffrey writes:

Challenging Credibility Findings Before the BIA

“As discussed in last week’s post, in 2002, the standard under which the BIA reviews credibility determination was changed as part of the reforms instituted by then Attorney General John Ashcroft.  Furthermore, in 2005, Congress enacted the REAL ID Act, which provided immigration judges with broader grounds for determining  credibility.  These two factors combine to make it more difficult for the Board to reverse an immigration judge’s adverse credibility finding than it was prior to these changes.  The following are some thoughts on strategy when appealing credibility findings to the Board.

1. Don’t offer alternative interpretations of the record.

You cannot successfully challenge an adverse credibility finding by offering an alternative way of viewing the record.  If the IJ’s interpretation is deemed reasonable, the BIA cannot reverse on the grounds that it would have weighed the documents, interpreted the facts, or resolved the ambiguities differently.  Or as the Supreme Court has held, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”  Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).

2. Does the record support the IJ’s finding?

On occasion, the discrepancy cited by the IJ is not found in the transcript.  IJs hear so many cases; some hearings are spread over months or years due to continuances; witnesses or their interpreters do not always speak clearly; documents are sometimes clumsily translated.  For all of these reasons, it is possible that the IJ didn’t quite hear or remember what was said with complete accuracy, or might have misconstrued what a supporting document purports to be or says.  It is worth reviewing the record carefully.

3. Does the REAL ID Act standard apply?

The REAL ID Act applies to applications filed on or after May 11, 2005.  With the passage of time, fewer and fewer cases will involve applications filed prior to the effective date.  However, there are still some cases which have been administratively closed, reopened, or remanded which involve applications not subject to the REAL ID Act standard.  In those rare instances, look to whether the IJ relied on factors that would not support an adverse credibility finding under the pre-REAL ID standard.  For example, did the IJ rely on non-material discrepancies to support the credibility finding?  If so, argue that under the proper, pre-REAL ID Act standard, the discrepancies cited must go to the heart of the matter in order to properly support an adverse credibility finding.

4. Did the IJ’s decision contain an explicit credibility finding?

Under the REAL ID Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.”  See INA section 208(b)(1)(B)(iii) (governing asylum applications); INA section 240(c)(4)(C) (governing all other applications for relief).  Therefore, review the decision carefully to determine if an explicit credibility finding was made.  In some decisions, the immigration judge will find parts of the testimony “problematic,” or question its plausibility, without actually reaching a conclusion that the testimony lacked credibility.  In such cases, argue on appeal that the statutory presumption of credibility should apply.

5. Did the credibility finding cover all or only part of the testimony?

As an IJ, I commonly stated in my opinions that credibility findings are not an all or nothing proposition.  A respondent may be credible as to parts of his or her claim, but incredible as to other aspects.  There are instances in which a single falsehood might discredit the entirety of the testimony under the doctrine of falsus in uno, falsus in omnibus.  However, there are variations in the application of the doctrine among the circuits, and there are exceptions.  For example, the Second Circuit in Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) recognized the doctrine, but laid out five specific exceptions under which a false statement will not undermine the overall credibility.  However, the Seventh Circuit, in Kadia v. Gonzales, 501 F.3d 817 (7th Cir, 2007) rejected falsus in uno,referring to it as a “discredited doctrine.”  The Ninth Circuit, in Shouchen Yang v. Lynch, 815 F.3d 1173 (9th Cir. 2016), acknowledged that an IJ may apply the doctrine, but that the Board itself could not (for example, to deny a motion to reopen based on a prior adverse credibility finding).   Therefore, determine whether under the applicable circuit case law the falsehood cited by the IJ was sufficient to undermine all of the testimony.  If not, determine whether the remainder of the testimony is sufficient to meet the burden of proof.

6. Did the IJ rely on a permissible inference, or impermissible speculation?

In Siewe v. Gonzales, supra, the Second Circuit discussed the difference between a permissible inference and impermissible “bald” speculation.  The court cited earlier case law stating that “an inference is not a suspicion or a guess.”  Rather, an inference must be “tethered to the evidentiary record:” meaning it should be supported “by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.”  Generally, findings such as “no real Christian wouldn’t know that prayer” or “the police would never leave a copy of the arrest warrant” would constitute bald speculation unless there was expert testimony or reliable documentation in the record to lend support to such conclusion.

7. Did the IJ permissibly rely on an omission under applicable circuit law?

There is a body of circuit court case law treating omissions differently than discrepancies.  For example, several circuits have held that as there is no requirement to list every incident in the I-589,  the absence of certain events from the written application that were later included in the respondent’s testimony did not undermine credibility.  Look to whether the omission involved an event that wasn’t highly significant to the claim.  Also look for other factors that might explain the omission, i.e. a female respondent’s non disclosure of a rape to a male airport inspector; a respondent’s fear of disclosing his sexual orientation to a government official upon arrival in light of past experiences in his/her country.  Regarding omissions in airport statements, please refer to my prior post concerning the questionable reliability of such statements in light of a detailed USCIRF report.  See also, e.g., Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007); Ramseachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), addressing factors to consider in determining the reliability of airport statements.

8.  Was the respondent provided the opportunity to explain the discrepancies?

At least in the Second and Ninth Circuits, case law requires the IJ to provide the respondent with the opportunity to respond to discrepancies.  The Second Circuit limits this right to situations in which the inconsistency is not “dramatic,” and the need to clarify might therefore not be obvious to the respondent.  See Pang v. USCIS, 448 F.3d 102 (2d Cir. 2006).

9. Did the “totality of the circumstances” support the credibility finding?

Even under the REAL ID Act standards, the IJ must consider the flaws in the testimony under “the totality of the circumstances, and all relevant factors.”  INA sections 208(b)(1)(B)(ii), 240(c)(4)(C).  The circuit courts have held that the standard does not allow IJs to “cherry pick” minor inconsistencies to reach an adverse credibility finding.  For a recent example, note the Third Circuit’s determination in Alimbaev v. Att’y Gen. of U.S. (discussed in last week’s post) finding two inconsistencies relied on by the BIA as being “so insignificant…that they would probably not, standing alone, justify an IJ making an adverse credibility finding…”

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

REPRINTED WITH PERMISSION

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Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

For those of you who don’t know him, Judge Jeffrey Chase has a unique perspective starting his career in private practice, becoming a U.S. Immigration Judge in New York, and finally finishing his Government career as an Attorney Advisor writing decisions for the BIA.

Great stuff, Jeffrey!  I love being able to help folks “tune in” to things the they can actually use in the day to day practice of immigration law!

One of the best ways to fight “Gonzoism” and uphold due process is by winning the cases one at a time through great advocacy. Don’t let the “false Gonzo narrative” fool you! Even under today’s restrictive laws (which Gonzo would like to eliminate or make even more restrictive) there are lots of “winners” out there at all levels.

But given the “negative haze” hanging over the Immigration Courts as a result of Gonzo and his restrictionists agenda, the best way of stopping the “Removal Railway” is from the “bottom up” by: 1) getting folks out of “Expedited Removal” (which Gonzo intends to make a literal “killing floor”); 2) getting them represented so they can’t be “pushed around” by DHS Counsel and Immigration Judges who fear for their jobs unless they produce “Maximo Removals with Minimal Due Process” per guys like Gonzo and Homan over at DHS; 3) getting them out of the “American Gulag” that Sessions and DHS have created to duress migrants into not seeking the protection they are entitled to or giving up potentially viable claims; 4) making great legal arguments and introducing lots of corroborating evidence, particularly on country conditions, at both the trial and appellate levels (here’s where Jeffrey’s contributions are invaluable); 5) fighting cases into the U.S. Courts of Appeals (where Gonzo’s false words and perverted views are not by any means the “last word”); and 5) attacking the overall fairness of the system in both the Courts of Appeals and the U.S. District Courts — at some point life-tenured Article III have to see the absolute farce that an Immigration Judiciary run by a clearly biased xenophobic White Nationalist restrictionist like Sessions has become. Every time Gonzo opens his mouth he proves that the promise of Due Process in the Immigration Courts is bogus and that the system is being rigged against migrants asserting their rights.

Sessions couldn’t be fair to a migrant or treat him or her like a human being if his life depended on it! The guy smears dreamers, children whose lives are threatened by gangs, hard-working American families, LGBTQ Americans, and women who have been raped or are victims of sexual abuse. How low can someone go!

Virtually everything Gonzo says is untrue or distorted, aimed at degrading the humanity and legal protections of some vulnerable group he hates (Gonzo’s “victim of the week”), be it the LGBTQ community, asylum seekers, women, children, immigrants, Muslims, African-Americans, attorneys, the Obama Administration, or U.S. Immigration Judges trying to do a conscientious job. Perhaps the biggest and most egregious “whopper” is his assertion that those claiming asylum at the Southern Border are either fraudsters or making claims not covered by law.

On the contrary, according to a recent analysis by the UNHCR, certainly a more reliable source on asylum applicants than Gonzo, “over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border ‘were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.'” “Majority of Asylum Seekers have Legitimate Claims: Response to Sessions Statement,” available online at https://www.wola.org/2017/10/no-basis-claims-rampant-abuse-us-asylum-system-response-sessions-statement/.

This strongly suggests that the big fraud here isn’t coming from asylum seekers. No, the real fraud is the unusually high removal rate at the border touted by Gonzo and his EOIR “patsies” — the result of improper adjudications or unlawful manipulation of the system (intentional duress – misinforming individuals about their rights) by DHS, the U.S. Immigration Court, or simply wrong constructions of protection law.

I think that the majority of Immigration Court cases are still “winners” if the respondents can get competent representation and fight at all levels. Folks, Jeff “Gonzo Apocalypto” Sessions has declared war on migrants and on the Due Process Clause of our Constitution.

He’s using his reprehensible false narratives and “bully pulpit” to promote the White Nationalist, Xenophobic, restrictionist “myth” that most claims and defenses in Immigration Court are “bogus” and they are clogging up the court with meritless claims just to delay removal. The next step is to eliminate all rights and expel folks without any semblance of due process because Gonzo has prejudged them in advance as not folks we want in our country. How biased can you get!

So, we’ve got to prove that many, probably the majority, of the cases in Immigration Court have merit! Removal orders are being “churned out” in “Gonzo’s world” by using devices such as “in absentia orders” (in my extensive experience, more often than not the result of defects in service by mail stemming from sloppiness in DHS and EOIR records, or failure of the DHS to explain in Spanish — as required by law but seldom actually done — the meaning of a Notice to Appear and the various confusing “reporting requirements”); blocking folks with credible fears of persecution or torture from getting into the Immigration Court system by pushing Asylum Officers to improperly raise the standard and deny migrants their “day in court” and their ability to get representation and document their claims; using detention and the bond system to “coerce” migrants into giving up viable claims and taking “final orders;” intentionally putting detention centers and Immigration Courts in obscure detention locations for the specific purpose of making it difficult or impossible to get pro bono representation and consult with family and friends; using “out-of-town” Immigration Judges on detail or on video who are being pressured to “clear the dockets” by removing everyone and denying bonds or setting unreasonable bonds; sending “messages” to Immigration Judges and BIA Judges that most cases are bogus and the Administration expects them to act as “Kangaroo Courts” on the “Removal Railroad;” taking aim at hard-earned asylum victories at all levels by attacking and trying to restrict the many favorable precedents at both the Administrative and Court of Appeals levels that Immigration Judges and even the BIA often ignore and that unrepresented aliens don’t know about; improperly using the Immigration Court System to send “don’t come” enforcement messages to refugees in Central America and elsewhere; and shuttling potentially winning cases to the end of crowded dockets through improper “ADR” and thereby both looking for ways to make those cases fail through time (unavailable witnesses, changing conditions) and trying to avoid the favorable precedents and positive asylum statistics that these “winners” should be generating.

Folks, I’ve forgotten more about immigration law, Due Process, and the Immigration Courts than Gonzo Apocalypto and his restrictionist buddies on the Hill and in anti-immigrant interest groups will ever know. Their minds are closed. Their bias is ingrained. Virtually everything coming out of their mouths is a pack of vicious lies designed to “throw dirt” and deprive desperate individuals of the protections and fairness we owe them under our laws, international law, and our Constitution. Decent human beings have to fight Gonzo and his gang of “Bad Hombres” every inch of the way so that their heinous and immoral plan to eliminate immigration benefits and truncate Due Process for all of us on the way to creating an “Internal Security Force” and an “American Gulag” within the DHS will fail.

Remember,”as you did it to one of the least of these my brothers, you did it to me.”  Gonzo’s going to have some ‘splainin top do at some point in the future!

Stand Up For Migrants’ Rights! “Gonzo and His Toxic Gang Must Go!” Sen. Liz Warren was absolutely right. Demand a “recount” on the NYT “Worst Trump Cabinet Member” poll. Gonzo is in a class by himself!

 

PWS

10-14-17

 

 

PARTY OF INFAMY AND GROSS INDECENCY: GOP’S WHITE NATIONALIST WING SEEKS TO DESTROY U.S. ASYLUM LAW, SCREW THE MOST VULNERABLE – Want To Turn America Into A “Rogue Nation” That Trashes Human Rights! – THEY MUST BE EXPOSED AND STOPPED!

http://www.motherjones.com/politics/2017/10/trumps-immigration-proposal-could-make-it-radically-harder-to-get-asylum/

Noah Lanard reports for Mother Jones:

“When people arrive at the border seeking asylum from persecution, the United States gives them the benefit of the doubt. As long as they can show there’s a “significant possibility” that they deserve protection, they’re allowed to stay and make their case to an immigration judge. President Donald Trump and Republicans in Congress want to change that.

On Sunday, the Trump administration demanded that Congress overhaul the US asylum system as part of any legislation to protect the nearly 700,000 undocumented immigrants known as Dreamers from deportation. The White House’s asylum proposal, laid out in nine bullet-pointed items as part of the broader immigration plan, appears to be modeled on the Asylum Reform and Border Protection Act, a bill that Republicans on the House Judiciary Committee approved in July. The bill, which has not been passed by the full House, would make it easier for the Department of Homeland Security to quickly reject asylum claims and force most asylum seekers to remain in detention while their cases are decided. The overall effect would be to transform a system for protecting persecuted people, created in the wake of World War II, into a much more adversarial process.  

At a hearing in July, Rep. Zoe Lofgren (D-Calif.) warned that the GOP proposal would “all but destroy the US asylum system.” Now Trump is trying to fold those changes into a deal to protect the Dreamers—undocumented immigrants who came to the country as children—who were previously covered by Barack Obama’s Deferred Action for Childhood Arrivals program.

Eleanor Acer, an expert on refugees at the advocacy group Human Rights First, saidin a statement Monday that Trump’s demands will “block those fleeing persecution and violence from even applying for asylum, and punish those who seek protection by preventing their release from immigration detention facilities and jails.”

But Republicans like Rep. Bob Goodlatte (R-Va.) argue that asylum reform is needed to address “pervasive” fraud, such as false claims of persecution. Asylum claims from the “Northern Triangle” countries of Guatemala, El Salvador, and Honduras have been a major focus for Republicans. Between 2013 and 2015, there were more asylum claims from the Northern Triangle, which has been terrorized by MS-13 and other gangs, than in the previous 15 years combined. A 2015 report from the Government Accountability Office found that the United States has “limited capabilities to detect asylum fraud.” But the scope of the problem is not known. Leah Chavla, a program officer at the Women’s Refugee Commission, says going after fraud is misguided in light of the many checks and balances that are already in place. 

The real “fraudsters” here are the GOP restrictionists, led by folks like Goodlatte, Miller, and Sessions, trying to fob off their knowingly false and contrived narrative on America. Shame!

Second, the current system intentionally denies lawyers to the respondents in detention in obscure locations along the Southern Border, specifically selected to make it difficult for individuals to exercise their rights. Raising the standards would virtually guarantee rejection of all such asylum seekers without any hearing at all. The standard for having asylum granted is supposed to be a generous “well-founded fear” (in other words, a 10% chance or a “reasonable chance”). In fact, however, DHS and EOIR often fail to honor the existing legal standards. Forcing unrepresented individuals in detention with no chance to gather evidence to establish that it is “more likely than not” that they would be granted asylum is a ridiculous travesty of justice.

Third, access to lawyers, not detention, is the most cost-effective way to secure appearance at Immigration Court hearings. Individuals who are able to obtain lawyers, in other words those who actually understand what is happening, have a relatively low rate of “failure to appear.” In fact, a long-term study by the American Immigration Council shows that 95% of minors represented by counsel appear for their hearings as opposed to approximately 67% for those who are unrepresented. See,e.g., https://www.americanimmigrationcouncil.org/research/taking-attendance-new-data-finds-majority-children-appear-immigration-court

Rather than curtailment of rights or expensive and inhumane detention, the best way of insure that all asylum applicants appear for their scheduled hearings and receive full due process would be to insure that the hearings take place in areas with adequate supplies of pro bono and “low bono” counsel and that hearings are scheduled in a predictable manner that does not intentionally outstrip the capabilities of the pro bono bar.

Fourth, a rational response to fraud concerns would be building better fraud detection programs within DHS, rather than denying vulnerable individuals their statutory and constitutional rights. What would a better system look like:  more traditional law enforcement tools, like undercover operations, use of informants to infiltrate smuggling operations, and much better intelligence on the operations of human trafficking rings. And, there’s plenty of resources to do it. DHS just lacks the ability and/or the motivation. Many of the resources now wasted on “gonzo” interior enforcement and mindless detention — sacking up janitors and maids for deportation and detaining rape victims applying for asylum — could be “redeployed” to meaningful, although more challenging, law enforcement activities aimed at rationally addressing the fraud problem rather than using it as a bogus excuse to harm the vulnerable.

Fifth, Goodlatte’s whole premise of fraud among Southern Border asylum applications is highly illogical. Most of the Southern Border asylum claims involve some variant of so-called “particular social groups” or “PSGs,” But, the entire immigration adjudication system at all levels has traditionally been biased against just such claims. and, it is particularly biased against such claims from Central America. PSG claims from Central America receive “strict scrutiny’ at every level of the asylum system! No fraudster in his or her right mind would go to the trouble of “dummying up” a PSG claim which will likely be rejected. No, if you’re going to the trouble of committing fraud, you’d fabricate a “political or religious activist or supporter claim”  of the type that are much more routinely granted across the board.

Don’t let Trump, Miller, Sessions, Goodlatte, and their band of shameless GOP xenophobes get away with destroying our precious asylum system! Resist now! Resist forever! Stand up for Due Process, or eventually YOU won’t any at all! Some Dude once said “as you did it to one of the least of these my brothers, you did it to me.” While arrogant folks like the restrictionists obviously don’t believe that, it’s still good advice.

PWS

10-10-17

 

7th Slams IJ, BIA For Mishandling Of Credibility, Corroboration Issues In Moldovan Asylum Case — COJOCARI V. SESSIONS!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-11/C:16-3941:J:Hamilton:aut:T:fnOp:N:1992923:S:0

Key quote:

“We do not often see a timely asylum case where the applicant is a citizen of a country infamous for corruption and political oppression and presents a broadly consistent narrative and substantial corroboration. Yet Cojocari has done just that.

No. 16‐3941 27

Granted, his testimony includes a handful of minor discrep‐ ancies, and a couple of these—notably the timeline involving his university enrollment and the details of his October 2009 hospitalization—might have supported a plausible adverse credibility finding. But most of the discrepancies on which the immigration judge relied are so trivial or illusory that we have no confidence in her analysis or in the Board’s decision resting on that analysis.

Cojocari is entitled to a fresh look at his prior testimony and the evidence he supplied in support of his application for asylum, withholding of removal, and protection under the CAT. We therefore grant the petition for review. We urge the Board to assign this case to a different immigration judge for the remand proceedings. That is the best way to ensure that Cojocari gets the fair shake he deserves. E.g., Castilho de Oliveira v. Holder, 564 F.3d 892, 900 (7th Cir. 2009); Tadesse v. Gonzales, 492 F.3d 905, 912 (7th Cir. 2007); Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir. 2003); cf. Cir. R. 36 (7th Cir. 2016) (cases remanded for new trial are presumptively assigned to a different district judge).

On remand, the immigration judge should allow counsel for both sides to supplement the record if there is additional evidence (such as Cojocari’s medical book or an updated re‐ port on the political landscape in Moldova) that would assist the judge in assessing the risk of persecution or torture that Cojocari would face if deported.

The petition for review is GRANTED, the decision of the Board of Immigration Appeals is VACATED, and the case is REMANDED to the Board for further proceedings consistent with this opinion.”

PANEL: Chief Judge Wood, Circuit Judges Manion and Hamilton.

OPINION BY: Judge Hamilton

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Gee, who needs training when things like this can get through the system?

 

PWS

07-13-17