🏴‍☠️“ANY REASON TO DENY ASYLUM” BIA HITS ROUGH SLEDDING FROM COAST TO COAST — 1st Cir. (Bogus Adverse Credibility) & 9th Cir. (Ludicrous “Not Persecution” Finding) — But, EOIR’s “Asylum Denial Assembly Line” Wins Love From Trumpy 9th Cir. Judge!

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-persecution-nicaragua-flores-molina-v-garland-2-1

CA9 on Persecution, Nicaragua: Flores Molina v. Garland (2-1)

Flores Molina v. Garland

“Petitioner Mario Rajib Flores Molina (“Flores Molina”) participated in demonstrations against the ruling regime in his native Nicaragua, where he witnessed the murder of his friend and fellow protester by police and paramilitary members. Thereafter, he was publicly marked as a terrorist, threatened with torture and death by government operatives, and forced to flee his home. Flores Molina, however, was tracked down at his hideaway by armed paramilitary members, and was forced to flee for his life a second time. Flores Molina still was not safe. He was discovered, yet again, assaulted, and threatened with death by a government-aligned group. Flores Molina ultimately fled a third time— from Nicaragua altogether—out of fear for his safety. He eventually presented himself to authorities at the United States border and sought asylum and other relief. When Flores Molina sought asylum, withholding of removal and protection under the Convention Against Torture (“CAT”), an Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) determined that his past experiences in Nicaragua did not rise to the level of persecution. They also determined that Flores Molina did not establish a well-founded fear of future persecution. The IJ and BIA denied all forms of relief and ordered Flores Molina’s removal to Nicaragua. Flores Molina petitions for review of the BIA’s denial of his appeal of the IJ’s decision, as well as of the BIA’s subsequent denial of his motion to reopen proceedings. Because the record compels a finding that Flores Molina’s past experiences constitute persecution and because the BIA erred in its analysis of the other issues, we grant the first petition and remand for further proceedings. Accordingly, we dismiss the second petition as moot.

[Hats off to Mary-Christine Sungaila (argued) and Joshua R. Ostrer, Buchalter APC, Irvine, California; Paula M. Mitchell, Attorney; Tina Kuang (argued) and Natalie Kalbakian (argued), Certified Law Students, Loyola Law School!]

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

EOIR’s deadly, incorrect approach to sending refugees back to face persecution is legally incorrect, factually erroneous, and morally bankrupt. But, it does have one huge fan. Recently appointed Trump Ninth Circuit Judge Lawrence VanDyke:

In the Immigration and Nationality Act (INA), Congress codified the highly deferential substantial evidence test and established what should be our court’s guiding star in the review of immigration decisions: that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B) (codified as 8 U.S.C. § 1252(b)(4)(B) (emphasis added)). Congress later amended the INA by passing the REAL ID Act, further reining in our role and discretion as a reviewing court and stripping federal courts of jurisdiction to hear certain immigration claims. See Nasrallah v. Barr, 140 S. Ct. 1683, 1698 (2020) (Thomas, J., dissenting). Over time, however, this court’s decisions have chipped away at these statutory standards—broadening the scope and standard of our review far beyond the limited and deferential posture that Congress unmistakably set out in the INA. See id.

To properly apply our deferential standard of review, we are supposed to scour the record to answer a single question: could any reasonable adjudicator have agreed with the agency’s result, or does the record as a whole compel a different conclusion? See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (explaining that substantial evidence review requires that we review “the record considered as a whole” and reverse the agency only if no reasonable factfinder could agree with its conclusion); see also Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (describing Elias-Zacarias as “the touchstone” and “definitive statement of ‘substantial evidence’ in the context of . . . factual determinations in asylum cases”). On its face, this is an exceptionally deferential standard of review. But there’s more.

“Scour the record” to defeat asylum claims that should have been granted below, huh? That clearly defective, biased, one-sided approach is “due process and fundamental fairness” for a “person” under our Constitution? Or maybe asylum seekers of color aren’t “persons” to VanDyke and his righty cronies? That’s how VanDyke would like the Constitution applied if his life were at stake?

He’d like to use legal mumbo-jumbo to allow refugees to have their lives ended or threatened by non-expert decision makers making it up as the go along to deny meritorious claims. Under his “standard of review,” judicial review would be no review at all. Just scour the record for any obscure reason to deny asylum or, failing that, just make one up. Doesn’t matter as long as the individual loses and gets removed! That’s pretty much what too many EOIR judges and BIA “panels” (which can be a single judge) are already doing. Why add another layer of intellectual dishonesty, moral corruption, and absence of judicial ethics to the mess?

Mr. Flores-Molina is not buy any means the only one subjected to Judge VanDyke’s loony right-wing legal nonsense. You can “meet” the judge right here:

https://newrepublic.com/article/165169/lawrence-vandyke-judge-ninth-circuit-appeals-trump-bonkers-opinions

“The Rude Trump Judge Who’s Writing the Most Bonkers Opinions in America.”

One might legitimately ask why already vulnerable asylum seekers and their courageous lawyers are being subjected to such judicial abuse at all levels of our system. Why doesn’t Garland just appoint “real, expert, fair EOIR Judges” who will do the right thing at the “retail level” without having to enter the “appellate circus” 🤡 that Trump and the GOP have created?

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-credibility-reyes-pujols-v-garland

CA1 on Credibility: Reyes Pujols v. Garland

Reyes Pujols v. Garland

“[T]he BIA upheld an adverse credibility determination that the IJ reached in part based on an inconsistency in Reyes’s story that simply was not an inconsistency. Nor can we say that absent the adverse credibility finding, Reyes’s CAT claim would necessarily fail. We therefore must vacate the BIA’s ruling affirming the IJ’s denial of that claim. … Reyes’s petition for review is granted, the ruling of the BIA is vacated, and we remand for further proceedings consistent with this opinion.”

[Hats off to Ethan Horowitz!]

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

REALITY CHECK:

Here’s a key sentence from the preamble to the L.A. Declaration on Migration and Protection:

We are committed to protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers, and displaced and stateless persons regardless of their migratory status.

So I’d like to know how the following fit within our solemn commitment to “protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers?”

Falsely finding that systematic assaults, death threats, being driven from your home, and being tracked down after fleeing, carried out by a Nicaraguan Government so repressive that it wasn’t even invited to the L.A. Conference, do not constitute persecution; and
Inventing a bogus inconsistency in an asylum seeker’s testimony and using it to wrongfully deny asylum.

Clearly they don’t! And, this kind of official misconduct goes on somewhere at EOIR on both levels every day! Just ask any experienced asylum practitioner! So, why hasn’t Garland replaced the EOIR judges who are not qualified to be deciding asylum claims with readily available expert talent?

Asylum seekers face systematically unfair treatment by “judges” who serve at Garland’s pleasure. Many of those judges, particularly at the BIA, were appointed or “elevated” by Garland’s openly xenophobic, virulently anti-asylum predecessors during the Trump regime. Yet, inexplicably, they continue to inflict bad decisions and sloppy, legally defective, morally vapid work on the most vulnerable? Why?

What if we had an expert, due-process-oriented Immigration Court that uniformly interpreted asylum law correctly and actually granted much-needed and well-deserved protection? What if asylum seekers didn’t have to enter the “Circuit Court crap shoot” — or deal with bad “no review is judicial review” judges like Judge VanDyke — to get life-saving justice? What if the rule of law and human rights were honored and advanced in Immigration Court rather than being mocked and disparaged? What if Immigration Courts modeled good judicial behavior instead of operating as a shockingly dysfunctional parody of due process, fundamental fairness, and best practices?

Wouldn’t it be better for everyone?

Perhaps there is some modest movement in the right direction. I’ve received reports from at least two Immigration Courts that unqualified Trump-era appointees have been removed over over the past week. That’s a start! But, it will take lots more “removals or reassignments” and a complete “redo” of the mal-functioning BIA to get due process, expertise, fundamental fairness, and best (as opposed to worst) judicial practices back on track at EOIR!

🇺🇸Due Process Forever!

PWS

06-16-22

🤯GARLAND BIA’S SLOPPY WORK, ANTI-ASYLUM SLANT CONTINUES TO ROIL WATERS IN NORMALLY PRO-GOV 5TH CIR!

Dan Kowalski reports for LexisNexis Immigration Community:

Yahm v. Garland, unpublished, 5th Cir., 05-31-22

https://www.ca5.uscourts.gov/opinions/unpub/20/20-60914.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-credibility-remand-yahm-v-garland#

“Elvis Njenula Yahm, a citizen of Cameroon facing removal, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his pro-Anglophone political opinion. An immigration judge denied all three avenues for relief, and the Board of Immigration Appeals (BIA) dismissed Yahm’s appeal. … A recent decision supports Yahm’s view that an adverse credibility finding does not relieve the agency of its obligation to also consider documentary support for a CAT claim. See Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021). … Because Yahm offered nontestimonial evidence of country conditions in Cameroon, the BIA erred by not considering it in the context of his CAT claim and instead treating Yahm’s lack of credibility as dispositive. See Arulnanthy, 17 F.4th at 598. Yahm’s petition for review is GRANTED and these proceedings are REMANDED for the BIA to address the CAT claim consistent with Arulnanthy.”

[Hats off to Keith S. Giardina!]

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

Way to go, Keith! Congrats! Winning justice for asylum seekers in the 5th Circuit is no mean feat!

The 5th Circuit decision in Arulnanthy sounds very much like the 4th Circuit’s decision in Camara v. Ashcroft, 378 F. 3d 361 (4th Cir. 2004). Camara actually changed for the better the preparation, presentation, and most of all results in asylum cases in the 4th Circuit.

I consider it the “precursor” to the REAL ID provision now incorporated in the INA requiring IJ’s and the BIA to consider the “the totality of the circumstances, and all relevant factors,” in making credibility determinations. If that is actually done, which it isn’t in far too many cases in today’s broken Immigration Courts, the results are likely to be far more positive for asylum seekers and other respondents seeking relief in Immigration Court.

The “Camara effect” was real. For example, in 2004, on the “eve of Camara,” the asylum denial rate at the Arlington Immigration Court, where I sat, in the 4th Circuit, was in excess of 70%. By the time I retired in 2016, it was the polar opposite. The asylum grant rate exceeded 70%! SOURCE: TRAC Immigration.

Of course, no one factor is responsible for that positive change. And, I acknowledge that in the Charlotte Immigration Court, also in the 4th Circuit, where several judges were reknowned for their hard-core anti-asylum attitudes, the denial rates remained disturbingly above the national average. And, of course, the “institutionalized anti-asylum bias” ushered in and promoted at EOIR by the Trump regime resulted in another dramatic, totally unjustified, downturn in asylum grants by EOIR across America after 2016.

Nevertheless, positive appellate guidance on asylum is a major factor in establishing and maintaining due process in the Immigration Courts. Unfortunately, almost none of that expert positive guidance on asylum and other forms of relief comes from Garland’s BIA precedents. Additionally, although some of his appointments have been welcome, overall, Garland has done a very poor job of bringing in dynamic progressive expert leaders and judges to reverse the anti-asylum, anti-due-process, anti-immigrant “culture” that continues to haunt EOIR at all levels.

The “results” of his dysfunctional courts speak for themselves. Backlogs build, Circuit Courts struggle with EOIR’s poor “haste makes waste” work product, and decisional consistency on asylum is shockingly, “tragicomically” lacking!

In almost all ways, this system has seriously regressed in the past decade, even while eating up more resources! That’s about as much of an “engineered lose-lose” as one can imagine! Yet, Biden, Harris, and Garland appear impervious to this glaring, “fixable” problem that threatens our entire justice system!

Meanwhile, could even the conservative judges of the 5th Circuit be tiring of substandard work product inflicted on them by Garland’s dysfunctional EOIR? Reprehensibly, this is by no means the first “bogus asylum denial” by Garland’s EOIR involving a Cameroonian claim to be soundly rejected by the 5th. https://immigrationcourtside.com/2022/05/20/%f0%9f%8f%b4%e2%98%a0%ef%b8%8fassembly-line-injustice-eoir-most-conservative-u-s-circuit-court-faults-bogus-asylum-denial-for-cameroonian-that-garlands-doj-defended/

Shouldn’t racial justice advocates be all over Garland, Monaco, Gupta, and Clarke for the EOIR’s disgraceful performance on asylum claims involving Cameroonians and other applicants of color! If not, why not? The entire “progressive social justice community” should be expressing “collective outrage” to the Biden Administration about the Garland DOJ’s disgraceful performance at EOIR and on other human rights issues involving race and immigration.

It’s also worthy noting, as my Round Table colleague retired Judge Jeffrey Chase has pointed out before, that the Biden Administration has granted TPS to Cameroonians in the U.S. So, there is really no issue about the truly miserable human rights conditions there. That is, apparently, except in Garland’s Immigration Courts where the “programmed to deny” and “good enough for government work” mentalities continue to prevail — even where the stakes are life or death!

Additionally, the regulations implementing the Convention Against Torture (“CAT”) at EOIR initially became effective on Mar. 22, 1999 — over two decades ago. I remember that at one of the next Immigration Judge Conferences, probably in 1999 or 2000, the training specifically instructed that because of the country-conditions related nature of CAT, adverse credibility rulings against a respondent were not determinative of CAT claims.

Yet, more than two decades later, Immigration Judges and, worse yet, the BIA are still making that same fundamental error! How does this make the idea that EOIR is an “expert court” or that “constitutional due process is being protected at EOIR” anything other than a “sick joke.” Yet, the mockery of justice continues and nobody at Justice, from the top down, is being held accountable for stomping on life-determining legal and Constitutional rights! Why?

🇺🇸Due Process Forever!

PWS

06-01-22

🏴‍☠️ASSEMBLY LINE INJUSTICE @ EOIR! — MOST CONSERVATIVE U.S. CIRCUIT COURT FAULTS BOGUS ASYLUM DENIAL FOR CAMEROONIAN, THAT GARLAND’S DOJ DEFENDED! — Nkenglefac v. Garland, 5th Cir., 05-18-22, published

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60647-CV0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-due-process-credibility-nkenglefac-v-garland#

“Petitioner Giscard Nkenglefac, a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge (“IJ”), Agnelis Reese, denied Nkenglefac’s application for relief from removal and ordered him removed to Cameroon after determining that Nkenglefac was not credible. The Board of Immigration Appeals (“BIA”) subsequently affirmed the IJ’s determination, and Nkenglefac was removed to Cameroon. Nkenglefac now petitions for review of the BIA’s dismissal of his appeal from the IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Nkenglefac challenges the IJ’s reliance on his U.S. Customs and Border Protection (“CBP”) and asylum credible fear interviews that were not entered into the hearing record of the removal proceeding, nor, indeed, raised in that hearing at all, to make an adverse credibility finding. … Nkenglefac argues that the IJ erred as a matter of law by drawing negative credibility inferences from summaries of his CBP and credible fear interviews because neither interview was submitted into the record during his proceeding, much less adverted to. Nkenglefac also argues that he did not waive this argument because he could not have raised the issue before the IJ given that he had no notice the IJ would rely on these documents prior to issuance of her decision. … [A]t no point during the hearing before the IJ was Nkenglefac provided with the opportunity to explain any apparent inconsistencies or dispute the accuracy of the records in question, or cross examine the individuals who prepared the interview summaries, much less object to their introduction, or offer views on weight to be given to the evidence. Inspection of the hearing record confirms that Nkenglefac was not given the opportunity to explain perceived inconsistencies in the government summaries of his prior uncounseled interviews.5 Indeed, the voluminous testimonial record, including extensive government cross-examination and IJ direct inquiry, gives no indication that Nkenglefac had previously made any inconsistent statements, yet the IJ, three months later, determined that “inconsistencies and omissions . . . undermine critical parts of Respondent’s claim” to such an extent that the court denied “Respondent’s application based on lack of credibility.” … The BIA majority—affirming the IJ’s decision—also determined that Nkenglefac’s argument regarding the absence of the CBP and credible fear interviews from the record was “waived” because “the [trial] transcript reflects that [Nkenglefac’s] former counsel never requested that these records . . . be made a part of the record.” However, we fail to understand why Nkenglefac’s counsel should have introduced these government summaries into the record to anticipate and explain later-perceived inconsistencies when they were never identified, referenced, or discussed. It is also worth noting that there is no evidence—beyond the statement of the BIA majority—that Nkenglefac’s counsel failed to preserve this issue on appeal. The issue was discussed at length in Nkenglefac’s appeal brief to the BIA and again in his brief to this court. Furthermore, this observation stands in contravention to existing BIA law that “an adverse credibility determination should not be based on inconsistencies that take an alien by surprise.” Matter of Y-I-M-, 27 I. & N. Dec. 724, 726-29 (BIA 2019) (quote at 726). Notably, the Government’s brief on appeal does not argue that Nkenglefac has waived this argument. … We GRANT the petition for review and REMAND this case to the BIA for further proceedings consistent with this opinion.”

[Hats waaaayyyy off to Homero López, Jr., who reports that he is in touch with his client and is hopeful of bringing him back to the USA. Audio of the oral argument is here.]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Once again, credibility, the problematic issue in this case, is not a profound legal concept. It’s supposedly the “bread and butter of Immigration Judging.” Yet, both the IJs and the BIA continue to often get it wrong. Perhaps “dead wrong” in the cases of asylum seekers! Why isn’t this fundamental flaw at the all-important “retail level” of our justice system receiving the necessary attention and corrections from Garland and the Biden Administration?

As one “Courtside Commenter” said:

I think this is the IJ who retired with a 100% asylum denial rate [actually it was 99.4%, denying 155 of 156 claims she “heard” — but didn’t listen to — over a career that lasted far too long]!And Cameroon is now a TPS country.

This decision is proof perfect of EOIR’s deportation assembly line approach.And I’ve mentioned a number of times the alarming problems with CBP arrival statements noted by the US Commission for International Religious Freedom, an internal government component, which has repeatedly flagged the fact that the resulting “statements” are not the verbatim transcripts they appear to be, and often contain questions that were never actually asked of the respondent.

How bad was this now retired Judge who has been the subject of frequent adverse publicity? See, e.g., https://www.topic.com/your-judge-is-your-destiny; https://www.motherjones.com/crime-justice/2019/07/inside-the-courtroom-where-every-asylum-seeker-gets-rejected/.

As pointed out in the above comment, Cameroon is now a TPS country. Additionally, one of the “five top nationalities” that came before this “asylum denial machine” were asylum seekers from Eritrea. Although they found no success with her, the EOIR statistics for FY 2022 show that that every “merits decision” on Eritrean asylum was granted. There were exactly ZERO, “0” merits denials. See https://www.justice.gov/eoir/page/file/1107366/download.

Thankfully, Judge Reese has retired. But the endemic problems she symbolized, the lack of effective appellate review, and disdain for due process for asylum seekers by the BIA remain overarching problems that Garland has stubbornly failed to effectively address.

Additionally, in another “under the radar yet highly significant problem,” Garland’s OIL within the USDOJ Civil Division continues to “defend the indefensible” coming out of the BIA. This wastes Government and private sector litigation resources, not to mention precious Article III Court time. It also turns due process and immigrant justice in the U.S. into a random game of chance.

Obviously, there is a severe lack of leadership all over the USDOJ under Garland. Moving toward the “halfway point” in the Biden Administration, there still is no appointed and confirmed Assistant Attorney General for the Civil Division!

🇺🇸Due Process Forever!

PWS

05-20-22

🤮INEFFECTIVE ASSISTANCE/DEFECTIVE COURTS — 3rd Cir. Exposes Massive Due Process Failure @ Garland’s EOIR! — St. Ford v. A.G.

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

From Judge Roth’s opinion:

The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers.

Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.

And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”

Arckange Saint Ford will get a second shot at canceling the Government’s order of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full.

But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing.

. . . .

Here, though it was reasonable to request Saint Ford corroborate his testimony about the identity and motive of his harassers, the IJ did not tell him what corroboration she needed or give him a chance to present that evidence. There is no indication she engaged in the Abdulai inquiry as required before skipping straight to “hold[ing] the lack of corroboration against [Saint Ford].” Id. (alterations adopted). She went from first to third across the pitcher’s mound. Our Abdulai inquiry is there to ensure these important corners aren’t cut.

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

What’s wrong with this picture? Going on two decades after the enactment of the REAL ID Act, this IJ gets basic corroboration wrong on a life or death asylum case. Then, she compounds the error by failing to apply a two-decades old circuit precedent. The case sails through the BIA. Then, Garland’s OIL defends the indefensible. “Corner cutting” has become institutionalized, permitted, and even encouraged in today’s broken EOIR!

Meanwhile, it’s left to Circuit Judge Ambro to do the jobs of Garland, his failed BIA, and an IJ badly in need of remedial training! This is an expert tribunal? This is justice? This is due process? Gimmie a break!

This is squarely on Garland! He enables and defends defective, due-process-denying decisions by EOIR. His grotesque failure to appoint and empower a BIA that will end this nonsense and insist on competent legal performance from ALL Immigration Judges in these life or death cases is disgraceful!

Cases like this also “give lie” to the bogus claims that today’s EOIR is comprised of “experts” who can be trusted to remedy due process defects, model best practices, or (perhaps most absurdly) insure that the rights of all respondents, including the unrepresented, are protected. Why is a Dem Administration running a “due process denial machine?” Why is OIL defending the indefensible? Why is Garland still the AG, despite showing little interest and scant skill in creating a due process/fundamental fairness oriented tribunal at the “retail level” of our staggering justice system!

You don’t have to be a “rocket scientist” to trace the disrespect for the Constitutional, statutory, and human rights of migrants, largely individuals of color, to hate crimes, misogyny, curtailment of voting rights, and disrespect for equal justice and racial justice throughout our nation. The stunningly poor performance of the U.S. Immigration Courts under Garland also sets an unfortunate tone for the staggering and highly politicized Federal Court system from bottom to top!

🇺🇸 Due Process Forever!

PWS

05-19-22

⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!

Dr. Mary Ellsberg
Founding Director
Global Women’s Institute
George Washington University
PHOTO: GWU

https://www.eventbrite.com/e/the-inaugural-fourth-circuit-asylum-law-conference-tickets-203071732017?aff=speaker

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The Inaugural Fourth Circuit Asylum Law Conference

by William & Mary Law School Immigration Clinic

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The Inaugural Fourth Circuit Asylum Law Conference

by William & Mary Law School Immigration Clinic

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Join us for a full-day virtual conference discussing Fourth Circuit asylum law and best practices with experts. 6.5 VA & NC CLE credits.

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Join the William & Mary Law School Immigration Clinic, William & Mary Center for Racial and Social Justice, and Immigrant Justice Corps for the Inaugural Fourth Circuit Asylum Law Conference.

Conference Schedule:

Panels and Sessions include:

One Year In: The Biden Administration and Asylum Policy

Developments in Fourth Circuit Case Law

Increasing Access to Pro Bono Counsel in Underserved Areas: Virginia as a Case Study

Working Across Disciplines: Best Practices for Attorneys and Mental Health Professionals in Asylum Seeker Evaluations

Country Conditions: From Page to Practice

CLE Credit and DOJ Accredited Representative Certifications

This event has been approved for 6.5 credit hours of CLE credit from Virginia and North Carolina. Attorneys seeking CLE credit must purchase tickets indicating that CLE credit is provided (indicated by “CLE” listed by the ticket type).

Attorneys from other jurisdictions who are not seeking CLE credit from Virginia or North Carolina are welcome to attend.

DOJ Accredited Representative certifications will be provided to those who register as DOJ Accredited Representatives seeking certification.

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Our panel will be “Country Conditions: From Page to Practice.”

🇺🇸Due Process Forever!

PWS

02-25-22

🏴‍☠️☠️⚰️GARLAND’S FAILURES LOOM LARGE AS EOIR’S ABUSES OF BLACK REFUGEES EMERGE! 🤮 — Biased, Thinly Qualified “Judges” Fingered In HRF Report On Wrongful Returns To Cameroon Remain On Bench Under Garland — Anti-Asylum BIA & Ineffective Leadership From Trump Era Retained By Garland In EOIR Fiasco!

Kangaroos — What fun, sending Black Cameroonian refugees back to rape, torture, and possible death! We don’t need to know much asylum law or real country conditions here at EOIR. We make it up as we go along. And, Judge Garland just lets us keep on playing “refugee roulette,” our favorite game!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://lawprofessors.typepad.com/immigration/2022/02/deported-cameroonian-asylum-seekers-suffer-serious-harm.html

From HRF:

. . . .

Nearly all of the deported people interviewed had fled Cameroon between 2017 and 2020 for reasons linked to the crisis in the Anglophone regions. Human Rights Watch research indicates that many had credible asylum claims, but due process concerns, fact-finding inaccuracies, and other issues contributed to unfair asylum decisions. Lack of impartiality by US immigration judges – who are part of the executive branch, not the independent judiciary – appeared to play a role. Nearly all of the deported Cameroonians interviewed – 35 of 41 – were assigned to judges with asylum denial rates 10 to 30 percentage points higher than the national average.

. . . .

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

The complete report gives a totally damning account of EOIR’s incompetence, ignorance of asylum law, poor decision making, “rigged” assignment of bad judges, and systemic bias directed against asylum seekers, primarily people of color. Although human rights conditions have continued to deteriorate in Cameroon, asylum grant rates have fluctuated dramatically depending on how the political winds at DOJ are blowing.

For example, judges denying asylum because of imaginary “improved conditions” in Cameroon falls within the realm of the absurd. No asylum expert would say that conditions have improved.

Yet, in a catastrophic ethical and legal failure, there is no BIA precedent “calling out” such grotesque errors and serving notice to the judges that it is unacceptable judicial conduct! There are hardly any recent BIA published precedents on granting asylum at all — prima facie evidence of the anti-asylum culture and institutional bias in favor of DHS Enforcement that Sessions and Barr actively cultivated and encouraged!

How bad were things at EOIR? Judges who denied the most asylum cases were actually promoted to the BIA so they could spread their jaundiced views and anti-asylum bias nationwide. See, e.g., https://immigrationcourtside.com/2019/11/01/corrupted-courts-no-stranger-to-improper-politicized-hiring-directed-against-migrants-seeking-justice-the-doj-under-barr-doubles-down-on-biased-ideological-hiring-promot/

Even more outrageously, these same members of the “asylum deniers club” remain in their influential appellate positions under Garland! As inexplicable as it is inexcusable!

The HRF report details the wide range of dishonest devices used by EOIR to cut off valid asylum claims: bogus adverse credibility determinations; unreasonable corroboration requirements; claiming “no nexus” when the causal connection is obvious; failing to put the burden on the DHS in countrywide persecution involving the government or past persecution; bogus findings that the presence of relatives in the country negates persecution; ridiculous findings that severe harm doesn’t “rise to the level of persecution,” failure to listen to favorable evidence or rebuttal; ignoring the limitations on representation and inherent coercion involved in intentionally substandard and health threatening ICE detention, to name just some. While these corrupt methods of denying protection might be “business as usual” at EOIR “denial factories,” they have been condemned by human rights experts and many appellate courts. Yet Garland continues to act as if nothing were amiss in his “star chambers.”

This bench needs to be cleared of incompetence and anti-asylum bias and replaced with experts committed to due process and fair, impartial, and ethical applications of asylum principles. There was nothing stopping Sessions and Barr from “packing” the BIA and the trial courts with unqualified selections perceived to be willing and able to carry out their White Nationalist agenda! Likewise, there is nothing stopping Garland from “unpacking:” “cleaning house,” restoring competence, scholarly excellence, and “due process first” judging to his shattered system!

“It’s not rocket science, but ‘unpacking’ the Immigration Courts appears beyond Garland’s skill set!”
“Unpacking”
Photo by John Keogh
Creative Commons License

All that’s missing are the will and the guts to get the job done! Perhaps that’s not unusual for yet another Dem Administration bumbling its way through immigration policy with no guiding principles, failing to connect the dots to racial justice, betraying promises to supporters, and leaving a trail of broken human lives and bodies of the innocent in its wake. But, it’s unacceptable! Totally!

🇺🇸Due Process Forever!

PWS

02-11-22

☹️CREDIBILITY WOES CONTINUE IN 1ST CIR FOR GARLAND’S BIA!

From Dan Kowalski @ LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-remand-menjivar-bonilla-v-garland

CA1 Remand: Menjivar Bonilla v. Garland

Menjivar Bonilla v. Garland

“Jose Ernesto Menjivar Bonilla, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for withholding of removal under Immigration and Nationality Act (“INA”) Section 241(b)(3) and relief under Article 3 of the United Nations Convention Against Torture (“CAT”). We grant the petition in part and remand for further proceedings. … [B]ecause the IJ’s assessments of Bonilla’s credibility and the decision to require corroborating evidence were based in significant part on discrepancies with the 2012 Record, which we have determined to be unreliable, further factfinding is required. See Mboowa v. Lynch, 795 F.3d, 222, 229 (1st Cir. 2015) (finding remand warranted where a central aspect of the agency’s credibility assessment is flawed). Accordingly, we remand to the agency for further factfinding. Guta-Tolossa v. Holder, 674 F.3d 57, 61 (1st Cir. 2011) (“Where a question is best resolved by the agency in the first instance, or is left primarily in the agency’s hands by statute, and the agency has failed to address that question, we generally must remand.”); see also Kho v. Keisler, 505 F.3d 50, 56 (1st Cir. 2007) (“If, in the absence of a credibility finding by the IJ, a reviewing court determines that such a finding is necessary for effective review of the case, it may remand to the agency for further factfinding.”). Accordingly, we vacate the denials of withholding and relief under the CAT and remand for further consideration consistent with this opinion.”

[Hats off to Rachel L.Rado!]

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

Let’s see, an IJ gets it wrong, a “single member BIA panel” summarily affirms w/o opinion, and a three member panel of the First Circuit unanimously reverses in a published opinion!

Seems to be a “weak link in the chain” here!

🇺🇸Due Process Forever!

PWS

01-13-21

🌬🤯MORE BLOWBACK FOR GARLAND’S “COURTS” — Problems Emerge On Credibility (1st Cir., 10th Cir.), Agfel (9th Cir.)

From Dan Kowalski @ LexisNexis:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/en-banc-ca1-credibility-remand-diaz-ortiz-v-garland

En Banc CA1 Credibility Remand: Diaz Ortiz v. Garland

Diaz Ortiz v. Garland

“Cristian Josue Diaz Ortiz, a native of El Salvador, seeks review of a decision by the Board of Immigration Appeals (“BIA”) affirming the denial of his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). The Immigration Judge’s (“IJ”) rejection of Diaz Ortiz’s petition for relief rested on an adverse credibility determination that primarily drew its support from a “Gang Assessment Database.” Flaws in that database, including its reliance on an erratic point system built on unsubstantiated inferences, compel us to conclude that the credibility judgment — and, in turn, the rejection of Diaz Ortiz’s request for relief — is not supported by substantial evidence. Accordingly, we grant the petition for review and remand for new immigration proceedings.”

[Hats way off to Kristin Beale, Ph.D., Ellen Scordino and Sameer Ahmed!]

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

And here’s one sent in by Round Table leader and scholarly blogger Judge “Sir Jeffrey” S. Chase:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110629330.pdf0

Takwi v. Garland, 10th Cir., 01-10-22, published

Nkemchap Nelvis Takwi seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a removal order entered by an Immigration Judge (IJ) and denying his motion to remand. Exercising jurisdiction under 8 U.S.C. § 1252, we grant the petition for review. We remand this matter to the BIA because the IJ did not make an explicit adverse credibility determination, and the BIA did not afford Mr. Takwi the required rebuttable presumption of credibility.

Just for a good measure, the 9th Circuit also “busted” Garland’s BIA on an agfel issue:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-agfel-togonon-v-garland

CA9 on AgFel: Togonon v. Garland

Togonon v. Garland

“Petitioner Longinos Togonon, a native and citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 2013. In 2015, he was convicted of arson in violation of California Penal Code § 451(b) and sentenced to three years of imprisonment. In 2018, the Department of Homeland Security initiated removal proceedings against Togonon, alleging (as relevant for our purposes) that his arson offense qualifies as an “aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). The Immigration and Nationality Act defines the term “aggravated felony” to include “an offense described in” 18 U.S.C. § 844(i). 8 U.S.C. § 1101(a)(43)(E)(i). The Board of Immigration Appeals (BIA) held that a conviction under California Penal Code § 451(b) is an offense described in 18 U.S.C. § 844(i) and that Togonon is therefore subject to removal from the United States. Reviewing that decision de novo, see Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017), we conclude that the BIA erred in so holding. We accordingly grant Togonon’s petition for review.”

[Hats off to pro bono publico appointed counsel Matthew N. Ball (argued), Gibson Dunn & Crutcher LLP, Denver, Colorado; Paul J. Collins, Gibson Dunn & Crutcher LLP, Palo Alto, California; Andrew T. Brown and Matt Aiden Getz, Gibson Dunn & Crutcher LLP, Los Angeles, California!]

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

The First Circuit decision was 4-3. It appears that the respondent’s lawyers, experts, and the majority did the careful, critical analysis that the BIA failed to perform. Even the dissenters, who got it wrong, appear to have spent more time and thought on this issue than Garland’s BIA.

The Tenth Circuit decision highlights “Basic Asylum 101” failures by both the IJ and the BIA. It’s not that hard to make a specific credibility finding in every case. I did it in every contested asylum case I heard over 13 years on the bench. Nor is applying the presumption of credibility on appeal profound.

I’ll concede that the 9th Circuit agfel issue was more tricky. But, the BIA’s practice of almost always going with the most expansive, pro-DHS interpretations of the agfel definition to maximize deportation and minimize relief doesn’t help.

Go NDPA!

🇺🇸Due Process Forever!

PWS

01-12-22

☠️☠️ ☠️TRIPLE HEADER — 10TH CIRCUIT FINDS MULTIPLE MATERIAL ERRORS IN YET ANOTHER DISGRACEFUL WRONGFUL ASYLUM DENIAL BY GARLAND’S BIA!🤮

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca10-corrects-massive-bia-failure-villegas-castro-v-garland#

CA10 Corrects Massive BIA Failure: Villegas-Castro v. Garland

Villegas-Castro v. Garland

“We conclude that the Board erred in three ways. First, the Board erred in overturning the grant of asylum. The Board decided that Mr. Villegas-Castro had not filed a new application. But if he hadn’t filed a new asylum application, he wouldn’t need to show a material change in circumstances. And with the remand, the immigration judge enjoyed discretion to reconsider the availability of asylum. Second, the Board erred in rejecting the immigration judge’s credibility findings without applying the clear-error standard. The immigration judge concluded that Mr. Villegas-Castro’s conviction had not involved a particularly serious crime. For this conclusion, the immigration judge considered the underlying facts and found Mr. Villegas-Castro’s account credible. The Board disagreed with the immigration judge’s credibility findings but didn’t apply the clear-error standard. By failing to apply that standard, the Board erred. Third, the Board erred in sua sponte deciding that Mr. Villegas-Castro was ineligible for (1) withholding of removal or (2) deferral of removal under the Convention Against Torture. The Board reasoned that the immigration judge had already denied withholding of removal under federal law and the Convention. But the Board’s general remand didn’t prevent fresh consideration of Mr. Villegas-Castro’s earlier applications. So the Board erred in sua sponte rejecting the applications for withholding of removal and deferral of removal under the Convention Against Torture. We thus grant the petition for judicial review, remanding for the Board to reconsider Mr. Villegas-Castro’s application for asylum, to apply the clear-error standard to the immigration judge’s credibility findings, and to reconsider the applications for withholding of removal and deferral of removal under the Convention Against Torture.”

[Hats off to Harry Larson, formerly of Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois (Andrew H. Schapiro, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, Illinois, with him on the briefs), on behalf of the Petitioner, and Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. Dickson, DENTONS US LLP, Dallas, Texas, filed a brief for Amici Curiae, on behalf of Petitioner!]

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

A prime example of the “any reason to deny culture,” that Garland has allowed to continue, at “work” — although it doesn’t appear the BIA actually did any “work” here beyond insuring that the bottom line in the staff attorney’s draft was against the asylum seeker!

As I raised yesterday, how is it that this fatally flawed group continues to get “Chevron deference” from the Article IIIs?

https://immigrationcourtside.com/2021/12/02/%e2%9a%96%ef%b8%8f4th-cir-chief-circuit-judge-roger-gregory-dissenting-castigates-colleagues-on-grantng-chevron-deference-to-bia/

Also, why isn’t every group of legal professionals in America “camped” on Judge Garland’s doorstep @ DOJ demanding meaningful change @ EOIR as the degradation of American justice and demeaning of human lives continue largely unabated?

🇺🇸Due Process Forever!

PWS

12-03-21

☠️👎🏽GARLAND EOIR’S DISTURBINGLY BAD ANALYSIS IN YET ANOTHER ASYLUM CASE “OUTED” BY FIRST CIRCUIT! — Lopez Troche v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

http://media.ca1.uscourts.gov/pdf.opinions/20-1718P-01A.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-credibility-lopez-troche-v-garland#

“Mario Rene Lopez Troche (“Lopez Troche”), a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (“BIA”) that affirms the denial of his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We vacate and remand. … [T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified. The BIA cited to three portions of Lopez Troche’s testimony in support of its determination that the IJ did not clearly err in finding an inconsistency between what Lopez Troche told the asylum officer during his reasonable fear interview and how he testified as to the reporting of past abuse. But, none of those passages supports the BIA’s determination. … Nor is it possible to read either the BIA or the IJ to have inferred from Lopez Troche’s failure to report to the police the specific incidents that he discussed in his testimony that he was asserting in that testimony that did not report any incidents of abuse ever. Neither the IJ’s opinion nor the BIA’s expressly purports to premise its ruling as to adverse credibility on the basis of such inferential reasoning, see Chenery, 318 U.S. at 95, and we do not see what basis there would be for drawing that inference on this record, given that, in his reasonable fear interview, declaration, and testimony, Lopez Troche discussed a series of traumatic physical and sexual assaults that he had experienced that appears to have stretched back to a time when he was eight years old and that thus encompassed many more incidents than those addressed specifically in the portions of his testimony on which the BIA focused. As a result, we must vacate and remand the BIA’s order affirming the denial of Lopez Troche’s request for withholding of removal.”

[Hats way off to PAIR Project Legal Director Elena Noureddine and Staff Attorney Irene Freidel!]

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

Law students and attorneys of the NDPA are out there helping refugees every day. Meanwhile, over at Garland’s dysfunctional EOIR, Immigration Judges and BIA Appellate Immigration Judges strain to improperly “diddle the record” to deny relief to asylum seekers! Then, OIL defends them!

Essentially, in this case, the BIA “made it up and misrepresented the record” in an effort to deny asylum for specious reasons! Then, OIL tried to “blow it by” the Circuit!

“[T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified.” That’s “judgespeak” for: The BIA invented non-existent “inconsistencies” to unfairly deny asylum. Then, OIL defended that fabrication and denial of due process! What does this say about Garland’s leadership at DOJ?

Whatever happened to legal and judicial ethics? Clearly they were “deep sixed” under Sessions and Barr. But, why is Garland continuing to operate DOJ as an “ethics and quality free zone?”

This is a bad system with the wrong folks in too many judicial and leadership positions and presenting an overwhelming need for robust, bold change in how decisions are made and defended in Circuit Court. So far, Garland has not made the fundamental personnel changes and “quality upgrades” necessary to bring due process and some semblance of expertise and order back to his broken Immigration Courts! Why not?

Why are the kind of individuals who should be Immigration Judges and EOIR judicial leaders, talented lawyers like Elena and Irene, still “on the outside” rather than being actively recruited and brought in to replace those unable to perform judicial, administrative, and litigation duties in a fair, expert manner, that enhances due process? Why is EOIR still operating with a “judiciary” the majority of whom were installed by the Trump regime at Justice to “dehumanize, deport, and deter” without regard for due process? Why is OIL continuing to “defend the indefensible?” Why isn’t Congress asking Garland these questions?

Government lacking in expertise, intellectual honesty, professional ethics, and accountability is “bad government.” That’s true no matter which party holds power!

🇺🇸Due Process Forever!

PWS

10-21-21

⚠️MORE PROBLEMS LIKELY LOOM FOR GARLAND’S TOTALLY DYSFUNCTIONAL 🤡 EOIR AS EN BANC 9TH REJECTS “GOOD ENOUGH FOR GOVERNMENT WORK STANDARD” FOR CREDIBILITY REVIEW — “Any Reason To Deny Gimmicks” Fail Again As Court Requires EOIR To Comply With REAL ID! — Alam v. Garland

Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Here’s “quick coverage” from Dan Kowalski over at LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-en-banc-on-credibility-alam-v-garland

CA9, En Banc, on Credibility: Alam v. Garland

“We voted to rehear this case en banc to reconsider our “single factor rule,” which we have applied in considering petitions for review from decisions by the Board of Immigration Appeals (“BIA”). The single factor rule, as we have applied it, requires us to sustain an adverse credibility finding if “one of the [agency’s] identified grounds is supported by substantial evidence.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003). On rehearing en banc, we hold that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and we overrule our prior precedent establishing and applying it. We remand this case to the three-judge panel to re-examine the petition for review in light of our clarification of the standard for reviewing the BIA’s adverse credibility determinations. … Given the REAL ID Act’s explicit statutory language, we join our sister circuits and hold that, in assessing an adverse credibility finding under the Act, we must look to the “totality of the circumstances[] and all relevant factors.” § 1158(b)(1)(B)(iii). There is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination—our review will always require assessing the totality of the circumstances. To the extent that our precedents employed the single factor rule or are otherwise inconsistent with this standard, we overrule those cases. We remand this case to the three-judge panel for reconsideration in light of the newly articulated standard for reviewing adverse credibility determinations.”

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

Even with Article III Courts, including the 9th Circuit, generally “drifting right,” “good enough for Government work” has been rejected! That ought to help Garland boost the EOIR backlog!

The EOIR/DOJ policy right now appears to be “give any reason to deny,” hope that OIL can make at least one of them stick, and count on righty Circuit Judges to “swallow the whistle.” While that has certainly happened in the 5th Circuit, and to some extent in the 11th Circuit, there still appear to be enough Article IIIs out there critically reviewing EOIR’s too often patently substandard work product to make Garland’s indolent “look the other way” approach to the EOIR mess highly problematic.

Analyzing all the factors also might be inconsistent with mindless, due-process-denying three or four per day “merits quotas,” invented and imposed by Jeff “Gonzo Apocalypto” Sessions (someone with zero (0) Immigration Court experience and a well-justified lifetime reputation as a racist xenophobe — how does Matthews v. Eldridge allow a guy like that to pick and “run” judges — the Article IIIs might choose to look the other way, but most L-1 students know this is wrong and unconstitutional).

Just aimlessly listing common testimonial problems and hoping OIL will find one or more of them actually in the record is much faster (if you don’t count the impact of Circuit remands!) That it’s inconsistent with the statute, the Constitution, and, actually, BIA precedent seems to be beside the point these days. Of course, EOIR’s “assembly line jurists” also get “dinged” for remands.

Is there is anybody left at EOIR HQ today who could properly teach “totality of the circumstances” under REAL ID?

My observation from Arlington was that the number of adverse credibility findings and asylum denials went down substantially once the Fourth Circuit, and even occasionally the BIA, began enforcing “totality of the circumstances and all relevant factors” under REAL ID. As lawyers “got the picture” and began providing better independent corroborating evidence and documentation, the ability to “nit-pick” testimony, find the respondent “not credible,” and make it stand up on review diminished, as its well should have!

Of course, in my mind, REAL ID and the Fourth Circuit were just “re-enforcing and adopting” observations that members of our deposed “Gang of Four or Five” had made in numerous dissents from our BIA colleagues “undue deference” to poorly reasoned and thinly supported adverse credibility determinations, particularly in asylum cases.

More careful analysis of the record as a whole, often with the help of JLCs, became the rule at Arlington. And, after a few initial setbacks in the Fourth Circuit, ICE in Arlington generally stopped pushing for unjustified adverse credibility rulings and adopted approaches that actually complied with Fourth Circuit law.

The antiquated “contemporaneous oral decision format,” put on steroids by Sessions and Barr, is particularly ill-suited to the type of careful analysis required by the current statute, not to mention due process. And, having far too many newer Immigration Judges who have no immigration background and who have never had to represent an individual in Immigration Court is also a formula for failure, particularly when combined with inadequate training and idiotic “quotas.”

I’m not sure that the famous Rube Goldberg could have created a more convoluted, inefficient, and irrational process than exists at today’s EOIR. It simply can’t be fixed without leadership and assistance from outside experts who understand the problems (because they and their clients have “lived them”) and who aren’t wedded to all the mistakes and failed “silver bullet solutions” of the past!

By contrast with the EOIR mess, it’s amazing what changes an expert appellate body that actually takes its job and due process seriously can effect. Imagine if we had an expert BIA that made due process and treating individuals fairly “job one,” rather than operating as a “whistle stop on the deportation railroad.”

The ongoing EOIR clown show 🤡 just keeps getting exposed. But, nobody in charge seems to care! That’s a shame, 🤮 because “human lives, ⚰️ and perhaps the survival of our democracy, 🇺🇸 hang in the balance here!”

🇺🇸Due Process Forever!

PWS

08-09-21

🤮☠️ GARLAND’S EOIR STAR CHAMBERS CONTINUE TO GRIND OUT ANTI-ASYLUM TRAVESTIES! — Read What Passes For “Justice” In Garland’s Deadly Parody Of A Court System!

Garland’s “right hand man” on EOIR matters is eerily familiar, in a Himmleresque way! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Dan Kowalski reports for LexisNexis Immigration Community:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

CA9 on Credibility: Munyuh v. Garland

Munyuh v. Garland

“Ms. Munyuh’s case concerns us. From our reading of the record, the IJ seemed determined to pick every nit she could find. Besides erring procedurally, the IJ discounted probative evidence on flimsy grounds and displayed a dubious understanding of how rape survivors ought to act. Although we give great deference to the IJ as factfinder, substantial-evidence review does not require us to credit the credibility finding of an IJ who cherry-picks from—or misconstrues—the record to reach it. The IJ must consider the “totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). At the very least, the two legal errors we have identified warrant remand. The IJ erred by failing to give specific, cogent reasons for rejecting Ms. Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration that the police truck broke down after only four or five kilometers. And she further erred by discounting the supporting documentation without giving Ms. Munyuh adequate notice and opportunity to provide corroborative evidence. We therefore vacate the removal order and remand the case to the Board for further proceedings consistent with this opinion. PETITION GRANTED; VACATED and REMANDED.”

[Hats off to Ronald D. Richey!]

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

Congrats to Attorney Ronald D. Richey, who appeared before me many times at the Arlington Immigration Court.

Here’s a quote from the opinion by Senior Circuit Judge Danny Boggs, a Reagan appointee “on loan” from the 6th Cir., that shows the appallingly unprofessional performance of the Immigration Judge and the BIA in this “life or death” case:

On this point, the IJ made findings with which no reasonable factfinder could agree. She found Ms. Munyuh’s testimony that “the truck had traveled over two hours” to conflict with her earlier estimate that it had traveled “over an hour.” And she found Ms. Munyuh’s redirect testimony that “the truck [had] traveled approximately four to five hours before breaking down” to be “clearly in conflict with each of [Ms. Munyuh]’s prior estimations.”

But these time estimates are all consistent with each other. Indeed, assuming the truck really had traveled for four to five hours, Ms. Munyuh had no other choice but to give those answers. The IJ asked her if the truck had traveled more or less than an hour, to which Ms. Munyuh said more than an hour. Then the IJ asked whether the truck had traveled at least two hours, to which Ms. Munyuh answered in the affirmative.

No reasonable factfinder could find those two statements to conflict with Ms. Munyuh’s later testimony that the truck traveled for four to five hours. The IJ’s contrary finding is therefore unsupported by substantial evidence.

Wow! Is this what constituted “acceptable performance” when Judge Garland was on the D.C. Circuit? And, don’t forget, OIL actually defended this garbage product in May 2021, well after Garland took office and after experts had advised him to “clean house.”

The bad judges at EOIR whose lack of competence and/or bias unfairly condemn asylum seekers to persecution, torture and death, or all three, do NOT have life tenure and should NOT be on the Immigration Bench. Period! It’s not rocket science!

“No reasonable fact finder.” Isn’t that a problem in life or death cases? So-called “judges” who time after time stretch and misinterpret facts, ignore due process, and misapply basic asylum law to unfairly sentence asylum seekers to death! Why isn’t this grounds for removal from the bench? Or at least removing them from all asylum cases!

While Judge Boggs and his colleagues are rightfully “concerned” with EOIR’s performance in this case, Garland doesn’t appear to share those concerns. This is “business as usual” at Garland’s EOIR, just as it was when Stephen Miller was calling the shots! Obviously, Garland isn’t taking the human lives at stake here with even a modicum of seriousness. That’s totally unacceptable! Maybe Judge Boggs needs to pick up pen ✒️ and paper 📜 and express his outrage in writing to his former Circuit Court colleague, attaching an annotated copy of the garbage being turned out by his EOIR Star Chambers!

Star Chamber Justice — Just look the other way, it’s the Garland way! “Justice”
Star Chamber
Style

Also, don’t think that cases like this are an “aberration.” No, they aren’t! The only “aberration” is that this is one of a tiny sliver of injustices that was actually caught and corrected by the Article IIIs. How many unrepresented or under-represented individuals do you think that this judge and this BIA panel “railroad” in a week?

🏴‍☠️⚰️THEATER OF THE ABSURD: Incredibly, Garland & Mayorkas are now proposing to put this “Miller-Lite” EOIR infested with many incompetent, poorly trained, asylum-denying “judges,” with no credible leadership, totally lacking in professionalism and quality control, “in charge” of establishing precedents, insuring, and enforcing due process in their proposed “streamlined” asylum system! In other words, the solution for those who have repeatedly demonstrated an outrageous inability to conduct fair hearings and whose ignorance of asylum law and best practices is often stunning is to put them in charge of doing “paper reviews” of applications denied by Asylum Officers!

https://immigrationcourtside.com/2021/08/18/%F0%9F%97%BDcourtsides-instant-analysis-bidens-proposed-asylum-regs-advocates-beware-%E2%9A%A0%EF%B8%8F%E2%98%B9%EF%B8%8F-despite-a-potentially-workable-framework-adminis/

Good luck with that! Could there be a more insane proposal under current conditions? Making Stephen Miller the new “Asylum Czar” at EOIR? Perhaps, don’t be surprised!

Of course, in the nutsos world of Garland and Mayorkas, their fatally flawed proposal arguably would be a better than the current illegal and immoral use of Miller’s bogus Title 42 scheme to return legal asylum seekers to torture or death WITHOUT ANY PROCESS WHATSOEVER.

It’s simple. A complete “housecleaning” at EOIR, starting with the BIA, new progressive leadership and professional expert training at EOIR and the Asylum Office, new progressive asylum precedents and guidance, and an operating program for universal representation of asylum seekers are ABSOLUTE PREREQUISITES for fair and efficient regulatory reform of the asylum system! In the meantime, allow Asylum Officers to grant asylum to those who pass credible fear, but continue to give full Immigration Court hearings to any who can’t be granted. Get rid of Title 42 and start processing legal asylum seekers in an orderly fashion through ports of entry!

More than seven months into the Administration, Garland and Mayorkas could, and should, have had these needed progressive personnel, leadership, and structural changes in place, producing due process, and most important, actually saving lives! Instead, they have wasted time and squandered goodwill by continuing to run Stephen Miller’s White Nationalist system with Miller’s personnel in place! Simply incredible!

And, the bumbling, highly predictable weakness of the team of DOJ lawyers trying to defend the Administration’s few humanitarian immigration initiatives has become patently obvious. How can you expect lawyers who have spent the last four years misrepresenting asylum seekers as less than human and a threat to society suddenly start setting the record straight and effectively advocating for their human and legal rights? Obviously, they can’t! While EOIR is clearly the most glaringly dysfunctional part of DOJ, it’s obviously not the only problem and the only place Team Garland needed to (but didn’t) “clean house.”

I “get” that this isn’t Judge Bell’s, Ben Civiletti’s, or Janet Reno’s DOJ any more! But, remarkably, and tragically for the poor souls and their lawyers involved, Garland doesn’t!

🇺🇸Due Process Forever!

PWS

08-26-21

⚖️5TH CIRCUIT BELATEDLY “OUTS” IJ AGNELIS REESE (NOW RETIRED) FOR 99.5% ASYLUM DENIAL RECORD — “We find it likely that a ‘reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.’” Inexplicably Garland & Co. Let Other “Asylum Deniers Club” Members Continue to Wreak Havoc On Asylum Seekers, Their Lawyers, & The Entire U.S. Justice System!🤮

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — As asylum seekers and their fearless advocates suffer and the Immigration “Courts” disintegrate, there appears to be no end to “Garland’s Miller-Lite Happy Hour” @ DOJ!

Dan Kowalski Reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/rare-ca5-stay-grant-singh-v-garland#

Rare CA5 Stay Grant: Singh v. Garland

Singh v. Garland

“Daljinder Singh applied for asylum and protection under the Convention Against Torture, claiming that he feared persecution in India based on his membership in the Akali Dal Amritsar (“Mann Party”), a Sikh-dominated political party. The presiding immigration judge (“IJ”) denied his application, finding Singh not credible. The Board of Immigration Appeals (“BIA”) dismissed Singh’s appeal. Singh filed a petition for review and moved for a stay of removal. We granted Singh an emergency stay of removal pending further order. We now grant Singh a stay pending review of his petition. … Singh raises two principal arguments in his petition for review. First, he contends that the IJ’s near total denial rate for asylum applications reflected a bias and violated Singh’s due process rights. Second, he challenges the BIA’s conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination. We conclude that Singh has made the requisite showing that he is likely to succeed on the merits of both claims. … The IJ here [Agnelis Reese] denied relief to asylum seekers in 203 of the 204 cases she presided over from 2014 to 2019, a denial rate of 99.5%. … … Given the accounts of multiple witnesses to the attacks on Singh, medical records, images of the attacks on his father, and witness testimony regarding the BJP’s continued pursuit of Singh, Singh has made the requisite showing that the totality of the evidence does not support the IJ’s credibility determination. The appearance of bias painted by the denial of 203 of 204 asylum applications and the IJ’s adverse-credibility determination, informed by her noncompliance with the procedural safeguards of Matter of R-K-K-, are here interlaced. We do not suggest that a high percentage of denials is sufficient to avoid an IJ’s otherwise valid credibility determinations. Indeed, patterns in applicants’ presentations are likely and may necessarily result in a higher denial rate if the shared basis for relief is inadequate. But here, the incredibly high denial rate, when coupled with the IJ’s noncompliance with Matter of R-K-K-, presents a substantial likelihood that Singh will be entitled to relief upon full consideration by a merits panel. … Accordingly, we GRANT Singh’s motion for a stay pending review of his petition.”

[Hats way off to Peter Rogers!]

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

So, if the 5th Circuit and a “reasonable man” could figure out this isn’t “justice,” by any stretch of the imagination, why on earth 1) can’t Garland do likewise, and 2) does he continue to have his lawyers defend this disgraceful nonsense and waste of taxpayer money? Reese has previously been “featured” in Courtside for her “Kafkaesque” approach to “justice” for asylum seekers. Several years ago, I spoke at a Louisiana State Bar CLE event where attorney after attorney shared their “horror stories” about Reese. Yet, she managed to last for more than two decades over four different Administrations, two Democratic and two Republican.

Thankfully for American justice, Judge Reese retired in 2020, after more than two decades of abusing asylum seekers and disgracing the Immigration Courts! But, she was by no means the only unqualified Immigration Judge who helped create disgraceful and illegal “Asylum Free Zones” in Immigration Courtrooms throughout America.

A number of members of the “Asylum Denial Club” remain on the bench @ EOIR. Outrageously, some of them were even “rewarded” with appointments to the BIA by the previous Administration!

Rather than swiftly moving to replace the BiA and then commencing a thorough, long overdue “housecleaning” of unqualified judges and managers at EOIR, Garland, Monaco, Gupta, and Clarke have dawdled as asylum seekers continue to be abused, mistreated, denied due process, and justice mocked at EOIR. A civil rights/racial injustice/due process crisis of gargantuan proportions is going on right under their noses, and they have done very little to acknowledge or address it!

Not to mention that under Garland’s lackadaisical leadership the Immigration Courts continue to build unnecessary backlog at “Trumpian” rates. It’s not like experts haven’t brought the grotesque injustices and defects of EOIR to the attention of the Biden Administration and Garland!

One might ask just what Garland and his top lieutenants are doing to earn their pay? The answer is “not much” to date from a progressive standpoint!

Experts and advocates should be “raising hell” with the Biden Administration about the deficient due process and racial justice leadership at the DOJ! American justice deserves better! Much better!

And, the other Circuit Courts (particularly the 11th Circuit) that have looked the other way at the biased decision-making and other unconstitutional travesties of justice going on in Immigration Court on a regular basis don’t look so good either!

🇺🇸Due Process Forever!

PWS

07-14-21

⚖️SUPREMES UNANIMOUSLY SAY THAT “PRESUMPTION OF CREDIBILITY” DOESN’T APPLY ON JUDICIAL REVIEW IN OPINION BY JUSTICE GORSUCH — Garland v. Ming Dai

https://www.supremecourt.gov/opinions/20pdf/19-1155_1a7d.pdf

Syllabus by Court staff:

GARLAND, ATTORNEY GENERAL v. MING DAI CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 19–1155. Argued February 23, 2021—Decided June 1, 2021*

In each of these cases, a foreign national appeared before an immigration judge (IJ) and requested that he not be returned to his country of origin. For Cesar Alcaraz-Enriquez, the IJ first had to determine whether Mr. Alcaraz-Enriquez had committed a disqualifying “partic- ularly serious crime” based on his prior California conviction for “in- flicting corporal injury on a spouse or cohabitant.” See 8 U. S. C. §1231(b)(3)(B)(ii). The IJ considered both the probation report issued at the time of the conviction (which detailed a serious domestic vio- lence incident) and Mr. Alcaraz-Enriquez’s own testimony at the re- moval proceeding (which included an admission that he hit his girl- friend but allegedly did so in defense of his daughter). Relying in part on the version of events in the probation report, the IJ held Mr. Al- caraz-Enriquez ineligible for relief. On appeal, the Bureau of Immi- gration Appeals (BIA) affirmed. In Ming Dai’s case, he testified that he and his family had suffered past persecution by Chinese officials and expected future persecution upon return. But Mr. Dai initially failed to disclose that his wife and daughter had both returned volun- tarily to China since accompanying him to the United States. When confronted, Mr. Dai told the “real story” of why he remained in the United States. The IJ found that Mr. Dai’s testimony undermined his claims and denied relief. On appeal, the BIA affirmed. Mr. Alcaraz- Enriquez and Mr. Dai each sought judicial review, and in each case, the Ninth Circuit noted that neither the IJ nor the BIA made an ex- plicit “adverse credibility determination” under the Immigration Na- tionality Act (INA). §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C).

——————

* Together with No. 19–1156, Garland v. Alcaraz-Enriquez, also on cer- tiorari to the same court.

2 GARLAND v. MING DAI Syllabus

Applying its own judge-made rule that a reviewing court must treat the noncitizen’s testimony as credible and true absent an explicit ad- verse credibility determination, the Ninth Circuit granted relief.

Held: The Ninth Circuit’s deemed-true-or-credible rule cannot be recon- ciled with the INA’s terms. Pp. 6–15.

(a) The Ninth Circuit’s rule has no proper place in a reviewing court’s analysis. The INA provides that a reviewing court must accept “administrative findings” as “conclusive unless any reasonable adjudi- cator would be compelled to conclude to the contrary.” §1252(b)(4)(B). And a reviewing court is “generally not free to impose” additional judge-made procedural requirements on agencies. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524.

Judicial proceedings in cases like these do not constitute “appeals” in which the “rebuttable presumption of credibility on appeal” applies absent an explicit credibility determination. §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). Here, there is only one appeal—from the IJ to the BIA. See §§1158(d)(5)(iii)–(iv). Subsequent judicial review takes place not by appeal, but by means of a “petition for review,” which the INA describes as “the sole and exclusive means for judicial review of an order of removal.” §1252(a)(5). A presumption of credi- bility may arise in some appeals before the BIA, but no such presump- tion applies in antecedent proceedings before an IJ or in subsequent collateral review before a federal court. This makes sense because re- viewing courts do not make credibility determinations, but instead ask only whether any reasonable adjudicator could have found as the agency did. The Ninth Circuit’s rule gets the standard backwards by giving conclusive weight to any testimony that cuts against the agency’s finding. Pp. 6–9.

(b) Mr. Alcaraz-Enriquez and Mr. Dai offer an alternative theory for affirming the Ninth Circuit. Because, they say, they were entitled to a presumption of credibility in their BIA appeals, they are entitled to relief in court because no reasonable adjudicator obliged to presume their credibility could have found against them. Even assuming that there was no explicit adverse credibility determination here, the Ninth Circuit’s reasoning is flawed for at least two reasons. Pp. 10–15.

(1) The presumption of credibility on appeal under the INA is “re- buttable.” And the INA contains no parallel requirement of explicit- ness when it comes to rebutting the presumption on appeal. Reviewing courts, bound by traditional administrative law principles, must “up- hold” even “a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286. In neither case did the Ninth

Cite as: 593 U. S. ____ (2021) 3 Syllabus

Circuit consider the possibility that the BIA implicitly found the pre- sumption of credibility rebutted. The BIA expressly adopted the IJ’s decision in Mr. Alcaraz-Enriquez’s case, which, in turn, noted that Mr. Alcaraz-Enriquez’s story changed from the time of the probation report to the time of the hearing—a factor the statute specifically identifies as relevant to credibility, see §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). And in Mr. Dai’s case, the BIA also adopted the IJ’s decision, which discussed specific problems with Mr. Dai’s demeanor, candor, and internal inconsistency—an analysis that certainly goes to the presumption of credibility even if the agency didn’t use particular words. See ibid. In each case, the Ninth Circuit should consider whether the BIA in fact found the presumption of credibility overcome. If so, it seems unlikely that the conclusion in either case is one no rea- sonable adjudicator could have reached. Pp. 10–13.

(2) The presumption of credibility applies with respect to credibil- ity but the INA expressly requires the noncitizen to satisfy the trier of fact on credibility, persuasiveness, and the burden of proof. §§1158(b)(1)(B)(ii), 1231(b)(3)(C), 1229a(a)(4)(B). Even if the BIA treats a noncitizen’s testimony as credible, the agency need not find such evidence persuasive or sufficient to meet the burden of proof. Here, the Ninth Circuit erred by treating credibility as dispositive of both persuasiveness and legal sufficiency. Pp 13–15.

884 F. 3d 858 and 727 Fed. Appx. 260, vacated and remanded. GORSUCH, J., delivered the opinion for a unanimous Court.

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

Can’t win ‘em all: The Round Table filed an amicus brief on behalf of the respondent in this case. Sadly, on this occasion, we didn’t convince anyone.☹️

Due Process Forever!

PWS

06-01-21

⚖️🗽4TH CIRCUIT BLASTS GARLAND EOIR’S INDOLENT, “HASTE MAKE WASTE,” DENIAL-CENTRIC ASYLUM ADJUDICATION IN ANOTHER VICTORY FOR ROUND TABLE & DUE PROCESS & ANOTHER “WARNING SHOT ACROSS THE BOW” FOR GARLAND’S FAILURE TO INSTITUTE LONG OVERDUE PROGRESSIVE REFORMS AND REPLACE DEFICIENT JUDGES @ EOIR! 🏴‍☠️☠️— Immigration Judges Have A Duty To Develop the Record, Even When It Slows Down EOIR’s “Deportation Railroad” — AREVALO QUINTERO v. GARLAND!

Arevalo Quintero v. Garland, 4th Cir., 05-26-21, published

PANEL:MOTZ, WYNN, and FLOYD, Circuit Judges.

OPINION BY: Judge Wynn

CONCURRING OPINION: Judge Motz

KEY QUOTE:

In our country, few populations are as vulnerable as noncitizens facing removal

proceedings who are unable to secure the assistance of adequate counsel. Yet the consequences they may face are severe: family separation, prolonged detention, and deportation to a country where persecution or even death awaits.

We are acutely conscious of the harsh realities of our immigration system faced by thousands of noncitizens each day. These individuals come to our shores in search of sanctuary and a better life. Many are poor, young, uneducated, or (like Petitioner) all three. Of course, we recognize that immigration policies are primarily a concern for the elected branches. But it is our role, and our highest duty, to ensure that those policies are applied fairly and with full regard to our laws and our Constitution.

With these grave concerns in mind, we hold today that under the Immigration and Nationality Act and, where relevant, the United States’ obligations under the Refugee Convention, immigration judges have a legal duty to fully develop the record, which becomes particularly important in pro se cases. We believe this procedural protection is essential for ensuring fundamental fairness and reasoned decision making in removal proceedings.

Based on our review of the record, we conclude that the immigration judge below failed to fulfill her duty to fully develop the record, thereby depriving Petitioner of a vital statutory protection and a full and fair hearing. In light of this and other errors made by the immigration judge and the Board of Immigration Appeals, we grant the petition, vacate Petitioner’s final order of removal, and remand to the Board of Immigration Appeals with instructions to remand the case to the immigration judge for further fact-finding and reconsideration of Petitioner’s application for withholding of removal and Convention Against Torture relief.

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

How many more of these disasters will it take for Garland to oust the deadwood and the “denial club” from the Immigration Judiciary, make the urgently needed, long overdue progressive reforms, and bring in progressive leaders and judges to restore due process at the totally and disgracefully dysfunctional EOIR? How many more lives will be needlessly be lost or squandered by the unconstitutional parody of a “court” system that Garland is running @ EOIR? What will the cost of his “case of the slows” be to Garland’s reputation and to the Biden Administration? Why is the “EOIR Clown Show”🤡⚰️still engaging in its daily deadly performances more than four months into the Biden Administration?

Also, every additional embarrassing, unprofessional performance like this by EOIR makes Garland’s horrible decision to hire 17 more “less than the best,” non-expert Immigration Judges, who haven’t represented individuals in Immigration Court, look worse and worse! There are lots of experts out there in the NDPA who know asylum law, know how to develop a record fully, and are highly sensitive to the due process needs of asylum seekers and other migrants. The continuation of ignorant, haste make waste, “any reason to get to no” decision making at EOIR, that specifically was encouraged by Sessions and Barr, is totally unnecessary ands highly inappropriate!

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Here’s more from Round Table leader Hon. “Sir Jeffrey” Chase:

Friends, this is a really great win. In a 62-page published decision, a panel of the Fourth Circuit referenced our amicus brief, adopted many of our arguments, and agreed that an IJ has a duty to develop the record in a pro se withholding/CAT claim.

The court actually granted the withholding of removal claim (see pp. 53-54). It also found that the BIA incorrectly applied Matter of W-Y-C- & H-O-B- to a pro se applicant.

While our brief is mentioned in the body of the decision, if you look at footnote 24, the court especially liked the analogy from our brief (the work of our drafter, Steve Schulman of Akin Gump) comparing a pro se applicant’s attempts to formulate a particular social group to a game of Scrabble in which one of the players “does not speak English and cannot spell;” adding that “without help, the respondent could never win, and can’t even meaningfully participate.”

There are also references to Matter of S-M-J- and the UNHCR Handbook.

I think we can be very proud of this one.

Thanks again to Steve Schulman, who has done such an outstanding job in drafting quite a few of our briefs.

Best, Jeff

Just think of what could be accomplished and the resources that would be conserved if the progressive due process experts were on the INSIDE at EOIR rather than perpetually STUCK ON THE OUTSIDE litigating, writing, lobbying, complaining to get Garland to simply do his job! Not rocket science. But, apparently below Garland’s view and beyond his engagement level from the “ivory tower.”

🇺🇸Due Process Forever!

PWS

05-26-21

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

Yahm v. Garland, unpublished, 5th Cir., 05-31-22

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports from LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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From Judge Roth’s opinion:

And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”

🇺🇸 Due Process Forever!

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The Inaugural Fourth Circuit Asylum Law Conference