Here’s the link! Check it out!
Go on over to Dan Kowalski’s LexisNexis Immigration Community here for all the links to the 19-part series on You Tube made possible by the American Law Institute with an introduction by none other than Justice Sandra Day O’Connor:
Thanks, Michele, for all you do for the cause of Due Process for migrants and better Immigration Court practices!
“So instead of fighting whether or not the feds can order cops to bust up the local Motel 6, cities can just hire some lawyers.
This is the lie of every talking head that praises building a wall but adds, with all faux sincerity, that they have “no problem with legal immigrants.” Almost half of the people shuttled through assembly line deportation hearings actually fit within legal immigration protections, but the complexity of the system — not to mention language barriers — make them victims of the bureaucracy.
If that projection is correct, NYIFUP cases result in immigrant victories 48 percent of the time. As Oren Root, director of the Vera Institute’s Center for Immigration and Justice, puts it, that means that of every 12 immigrants who are winning at Varick Street right now, 11 would have been deported without a lawyer.
That finding challenges a widely held assumption about immigration court: that most immigrants who go through it don’t qualify for the types of protection that Congress has laid out for particularly compelling cases. The Vera finding implies that, in fact, many immigrants do deserve relief as Congress and the executive branch have established it — but that hundreds of thousands of them have been deported without getting the chance to pursue those claims.
New York’s program has inspired 12 more cities to adopt the program. It’s put up or shut up time for the Department of Justice — if they’re really committed to proving some undocumented migrant is in violation of the law, then stand up and make that case in court.
Against a real attorney.
Unless they’re chicken.”
Read the complete article at the link. I have previously reported on the VOX News Article and the Vera study.
I think Patrice has hit the nail on the head. Sessions, Miller, Bannon and the White Nationalist crowd are biased bullies picking on the most vulnerable and disadvantaged. Like all bullies, they have absolutely no desire to compete fairly on a level playing field.
The Vera report confirms what many of us involved in the field have been saying for years: a significant portion of those going through Immigration Court, probably 50% or more are entitled to be in the US. Without lawyers, such individuals have little or no chance of making and succeeding on claims that would allow them to stay. Since at least one-third of individuals (and a much higher percentage of detained individuals) are unrepresented, we are unlawfully removing tens of thousands of individuals each year, in violation of due process. And nothing aggravates this unfairness more than unnecessary detention (in other words, the majority of immigration detention which involves individuals who are not criminals, security threats, or threats to abscond if they are represented and understand the system).
A competent and conscientious Attoyney General would work cooperatively with private bar groups, NGOs, and localities to solve the representation crisis and drastically reduce the use of expensive and inhumane immigration detention. But, Sessions is moving in exactly the opposite direction, in violation of constitutional principles of due process, practical efficiency, and basic human decency.
Here’s Jeffrey”s analysis of the 8th Circuit case, Patel v. Sessions:
And here are his practice tips on expert witnesses:
I love Jeffrey’s clear, concise, practical analysis of complex issues!
The Patel case raises a recurring issue: How can a supposedly “expert” tribunal obviously hurrying to produce final orders of removal for the Administration’s deportation machine (thereby, probably not coincidentally, insuring their own job security) keep ignoring clear statutory and constitutional rights of individuals as well as their own precedents and those of Courts of Appeals? Unfortunately, the situation is likely to get worse before it gets better.
The Administration has announced that it’s looking for ways to deal with the backlog not by any rational means, but by ramming still more cases through the already overloaded system. Although the DOJ mouths “due process” that’s not true. As long as we have “gonzo enforcement” with hundreds of thousands of cases on the Immigration Courts’ dockets that should be settled out of court through grants of relief or prosecutorial discretion, there will continue to be insurmountable backlogs. And, as long as the Immigration Courts are part of the Executive Branch, lacking true judicial independence to put a stop to some of the more outrageous ICE and DOJ policies and practices, the problem will not be solved. Due process can’t be put on an assembly line. The only questions are if and when the Article III Courts will put a stop to the due process travesty in the Immigration Courts. Or will they adopt the EOIR approach and “go along to get along.” Clearly, the Administration is banking on the latter.
I also note that the 8th Circuit is “hardly the 9th Circuit or even the 7th or 2d Circuits.” Indeed, the 8th routinely defers to the BIA. Many critics say that the 8th gives the BIA far too much deference. So, when the 8th Circuit starts finding gaping holes in the BIA’s approach to due process in Immigration Court, we know that “we’ve got trouble, right here in River City.”
“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.
The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.
. . . .
The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.
Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.
At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.
POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.
Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.
On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.
Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.
Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”
Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.
The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.
Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.
Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.
“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”
Read Rogers’s much longer full article at the link.
It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”
Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.
Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.
And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?
Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.
As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”
Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.
But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.
Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.
Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.
Click on this link for a “Printable Copy”:
Here’s the “complete text:”
BASIC ASYLUM LAW FOR LITIGATORS
II. WHO IS A REFUGEE?
A. Refugee Definition
B. Standard of Proof
C. What Is Persecution?
III. PARTICULAR SOCIAL GROUP
A. The Three Requirements
B. Success Stories
C. The Usual Losers
D. What Can Go Wrong?
E. A Few Practical Tips on PSG
IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT
Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.
Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.
There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!
I appreciate the outstanding leadership and amazing commitment of your managing partner Steve Brogan, your Global Pro Bono Coordinator Laura Tuell, and folks like Mary Hale and many others who have been making this happen on a daily basis. It’s what I call “due process in action.” I know that Steve feels very deeply about the overwhelming need for everyone to get a day in court. He has written very forcefully and eloquently on it in the past and has certainly helped to raise the profile of the representation crisis facing our Immigration Courts.
Jones Day isn’t just “talking the talk.” Although it’s now been 25 years since the end of my time as a partner in Jones Day’s Washington Office, I am well aware of the tremendous time and financial commitment that your partnership is making to saving and preserving our justice system and in many cases to saving the very lives of the folks who depend on it. For, as Steve and others at the firm realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.
I also congratulate and appreciate your willingness to undertake representation in all types of cases, rather than “cherry picking” likely winners as is always a temptation. As a judge, I found that cases that look like “sure losers” at the Master Calendar sometimes turn into “winners” when a knowledgeable and dedicated attorney enters the picture.
Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.
We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.
I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of a detained migrant are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.
Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.
I do want to offer one important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.
My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.
Please feel free to ask questions as we go along, or save them until the end.
In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”
An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.
The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:
There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.
Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.
Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution often do not qualify individuals for refugee status. However, some of these circumstances might be covered by the CAT, which has no nexus requirement.
The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.
The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.
The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.
A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.
Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.
Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.
In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner of the Seventh Circuit Court of Appeals in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7th Cir. 2011). Judge Posner gave three examples.
“The three forms are discrimination, harassment, and persecution. The first refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”
Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”
Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”
These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.
The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.
The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.
The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fifth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fifth Circuit at present.
Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.
Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.
Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5th Cir. 2015). Consequently, you will have to deal with the restrictive interpretation in L-E-A- and Ramirez-Mejia.
The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”
What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”
But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears to made the family PSG ground largely superfluous.
This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A-, the BIA is unlikely to retreat from L-E-A-, and the Fifth Circuit seems disposed to go along with the L-E-A- view.
On the other hand, to my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.
In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your detained client’s current problems.
So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.
Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.
Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both Jones Day specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.
This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.
In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.
The BIA has established three requirements for a PSG.
These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.
There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.
The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”
While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.
About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).
In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than Jones Day – you guys!
There are four basic groups that have been relatively successful in establishing PSG claims.
You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.
Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.
You probably will not encounter too many FGM cases at the Southern Border. Nevertheless, there are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.
Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.
You are likely to find a number of Southern Border cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now. And, sadly, you won’t be presenting these cases in Arlington.
Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014).
PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases at the Southern border. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.
Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.
An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.
We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.
That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.
Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.
I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.
First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.
Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.
Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”
Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.
Fifth, as I just mentioned, check your particular social group for “circularity.”
Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.
IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT
You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.
My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.
Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.
Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.
Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.
At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?
That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.
But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.
However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.
In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”
“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.
My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.
My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.
I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”
My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.
For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit. Nor are the courts in Texas where most of you will be appearing.
This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.
My eleventh rule is to “Get Physical.” In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).
I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?
My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm was effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.
My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.
Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”
But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.
Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyone who has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect more arrests, more detention (particularly in far-away, inconvenient locations like, for instance, Laredo, TX), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.
The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”
In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.
Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.
I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”
Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.
Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.
© Paul Wickham Schmidt, 2017, All Rights Reserved.
PROGRAM NOTE: I am a former Partner at Jones Day. resident in the Washington, D.C. Office.
Sarah Sherman-Stokes writes in an op-ed in today’s Washington Post:
“Sarah Sherman-Stokes is a clinical instructor and the associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.
America’s immigration judges have long been overburdened and under-resourced. One immigration judge has compared her job to “doing death-penalty cases in a traffic-court setting.” The stakes are high, while support and procedural protections for noncitizens facing deportation are negligible. It’s no surprise, then, that immigration judges suffer greater stress and burnout than prison wardens or doctors in busy hospitals.
Now, the Trump administration is making a difficult situation almost untenable. In an effort to expand and accelerate the deportation machine, the Trump administration has hit immigration judges with a one-two punch: dramatically increasing their caseloads and, at perhaps the worst time, canceling the annual week-long training conference for immigration judges. The impact on the entire removal system — and, more importantly, on the rights and lives of our most vulnerable noncitizen neighbors — will be devastating.
On average, an immigration judge completes more than 1,500 cases per year, with a ratio of 1 law clerk for every 4 judges, according to a recent report of the National Association of Immigration Judges. By comparison, the typical district court judge trying civil suits has a pending caseload of 400 cases and three law clerks for assistance.
This imbalance is poised to deteriorate even further. In January, the administration issued an executive order that effectively repealed and replaced a tiered system of immigration enforcement and removal priorities crafted by the Obama administration, which focused deportation efforts on the most serious offenders. President Trump’s executive order places a priority on every noncitizen suspected of violating the law. This includes noncitizens who have been charged with (but not convicted of) any offense or who have committed acts that constitute a criminal offense (though they have been neither charged nor arrested). In fact, a recently leaked February 2017 memo from an Immigration and Customs Enforcement official is even more explicit, instructing ICE agents to “take enforcement action against all removable aliens encountered in the course of their duties.” It adds that the agency “will no longer exempt classes or categories of removable aliens from potential enforcement.”
Read the complete article at the link.
How much longer does this due process and administrative disaster have to go on before the U.S. Immigration Courts are taken out of the Justice Department and authorized to operate as an independent Article I judiciary?
Click the link for full details. Great opportunity for a bilingual immigration attorney who wants to get into clinical teaching at a terrific school in a super city. Unlike many of today’s law schools, UW Law is located on Bascom Hill in the “heart” of the Main Campus with a view of the Capitol dome! Madison has to be one of the best places to live in the US.
While the initial appointmeet is for one year, based on performance, creativity, and ability to inspire funding, the position has longer term potential!
And, as an extra bonus, if you get the job, I’ll drop by at some mutually convenient time and give your students a “guest lecture.” Preferably right before a Badger home football or basketball game!
Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this my way.
Part IV: The Immigration Judge
There is widespread consensus that immigration courts are overwhelmed with immense caseloads, inadequate staffing, and lengthy backlogs (Arnold & Porter 2010). Non-detained immigrants in removal proceedings often wait two to three years to have their cases adjudicated. Cases on the detained docket move much faster. Despite the considerable time it takes to access counsel, determine eligibility for defenses to deportation, and gather evidence, the average life of a pro se detained immigrant’s case totals a mere 23 days (Eagly and Shafer 2015, 63).
In addition to facing institutional pressure to quickly move cases while immigrants are detained at government expense, judges are overburdened with the number of detained cases that must be efficiently adjudicated (Lustig et al. 2008). In 2015, immigration judges adjudicated and completed 51,005 detained cases, constituting 28 percent of all immigration cases completed that year (EOIR 2016, gure 11). Judges have very little face time with immigrants in their courtroom, and about half the time spent with pro se detainees involves requests for continuances to seek counsel (Eagly and Shafer 2015, 61). Furthermore, as administrative law judges, immigration judges have obligations to the respondents who appear pro se and are often required to step into the role of counsel in order to fully develop the record through interrogating, examining, and cross-examining an immigrant and any witnesses.”14
Below, a former immigration judge provides a snapshot of a few minutes on the detained docket.
Wednesday afternoon, detained master calendar. Feeling love and dread. Love: Fast-paced, meaningful, live audience, prepared attorneys, challenging legal questions, teamwork, mediation, problem solving, saving lives, teaching, performing, drama, positive messages, mentoring, full range of life and legal skills in use and on display. Dread: Hopeless cases, sobbing families, watching goodbyes, “not-quite-ready-for-primetime” (“NQRFPT”) attorneys, bad law, missing files, missing detainees, lousy televideo picture of respondent, equipment failures, claustrophobic courtroom, clogged dockets, imprisoned by the system, due process on the run, stress.
“How many today, Madam Clerk?”
“Fourteen, five bonded, two continued.”
“Thanks, Madam Clerk. Let’s make it happen!”
Politeness, patience, kindness. Listen.
“Please rise, the United States Immigration Court at Arlington Virginia, is now in session, Honorable Paul Wickham Schmidt, presiding.”
Jam-packed with humanity. Live. Uncomfortably hot. Bandbox courtroom. Ratcheting tensions. America’s most important, most forgotten courts. Lots of moving pieces. Put folks at ease. Performance begins.
“We’re on the record. This is Judge Paul Wickham Schmidt at the United States Immigration Court in Arlington, Virginia; we’re on a televideo hookup with the DHS Farmville Detention Center, the date is . . . , and this is a master calendar removal hearing in the case of Ricardo Caceres, File number A123 456 789. Counsel, please identify yourselves for the record.”
“Bonnie Baker for the respondent, Mr. Caceres.”
“April Able for the DHS.”
“What are we here for Ms. Baker?”
“Your Honor, we’re seeking a reasonable bond for my client, who has been in the United States for more than two decades. He’s a family man, the sole support of his wife and four US citizen children, who are sitting right behind me. He’s a skilled carpenter with a secure job. He pays his taxes. He’s a deacon at his church. His employer is here this afternoon and is willing to post bond for him. The respondent’s wife is out of work, and the family is on the verge of being evicted from their apartment. The oldest son and daughter are having trouble in school ever since their father was detained. The baby has developed asthma and cries all night.”
“I assume he’s in detention for a reason, Ms. Baker. What is it?”
“Well, Your Honor, he had a very unfortunate incident with one of his co-workers that resulted in his one and only brush with the law. I think he probably got some questionable legal advice, too.”
“What’s the conviction?”
“Aggravated assault with a deadly weapon.”
“18 months, with all but three months suspended, Your Honor.”
“Hmmm. Doesn’t sound very promising. What’s your take, Ms. Able?”
“He’s an aggravated felon, Your Honor, under the BIA and Fourth Circuit case law. Therefore, he’s a mandatory detainee. May I serve the records of conviction?”
“Yes, thank you Ms. Able. Isn’t Ms. Able right, Ms. Baker? He’s mandatory detained under the applicable law, isn’t he?”
“Well, Your Honor, technically that might be right. But we’re asking you to exercise your humanitarian discretion in this extraordinary situation.”
“As you know, Ms. Baker, I’m not a court of equity. The law gives me no discretion here. So, based on what you’ve presented, no bond. What’s next? Are you admitting and conceding removability and filing for relief?”
“The family wanted me to ask for bond, Your Honor.”
“You did, Ms. Baker. What’s the next step?”
“Well, the respondent has instructed me that if you didn’t grant a bond, he just wants a final order to go back to Mexico. He’s been in detention for some time now, and he just can’t wait any longer.”
“You’re sure that’s what Mr. Caceres wants to do?”
“Yes, Your Honor.”
“Mr. Caceres, this is Judge Schmidt, can you hear me?”
“Because of the crime you committed, the law doesn’t permit me to set a bond for you. Your lawyer, Ms. Baker, tells me that you have decided to give up your rights to a full hearing and be removed to Mexico. Is that correct?”
“Yes, Your Honor. I can’t stand any more detention.”
“You understand that this is a final decision, and that once I enter the order you will be removed as soon as DHS can make arrangements.”
“Yes, judge, I understand.”
“And, you’ve discussed this with your family, sir?”
“I just want to go — no more detention. Can I go tomorrow?”
“Probably not. But the assistant chief counsel and DHS officer in court are noting that you want to go as soon as can be arranged.”
“Your Honor, may his wife and children come up and see him for a moment?”
“Yes, of course, Ms. Baker. Please come on up folks.”
“Your Honor, the respondent’s wife would like to make a statement to the court.”
“I don’t think that’s prudent, Ms. Baker. She’s already hysterical, and there is nothing I can do about the situation, as I’m sure you’ll explain to her. We have lots of other people waiting to see me this afternoon.”
“Understood. Thanks, Your Honor.’
“You’re welcome, Ms. Baker. You did the best you could. Take care folks. I’m sorry you’re in this situation. Mr. Caceres, good luck to you in Mexico. Please stay out of trouble. The clerk will issue the final order. Who’s next, Madam Clerk?”
The “Not-Quite-Ready-For-Prime-Time” (“NQRPT”) Lawyer
“Mr. Queless, we’re here for your filing of the respondent’s asylum application.”
“Um, Your Honor, I’m sorry I don’t have it with me. I didn’t have a chance to get to it.”
“Why’s that, Mr. Queless? Your client has been in detention for some time now, and I gave you a generous continuance to get this done.”
“That’s very true, Your Honor, but the power was out at our office for a day, and my son crashed his car and I had to take care of the insurance and the repairs.”
“All right, come back in three weeks with your filing, without fail.”
“Can I come back next week, Your Honor? My client has been in detention a long time.”
“I know that, counsel. That’s why I wanted you to file today, so we could set an individual date. I’m already overbooked for next week, and I can’t justify putting you in front of others who are prepared.”
“Ah, could we just set an individual date now, Your Honor, and I’ll promise to file within a week?”
“That sounds like a really bad idea, Mr. Queless, in light of actual performance to date. I want to see the completed filing before I assign the individual date. That’s how we do things around here. You’ve been around long enough to know that.”
“Excuse me, Your Honor, but may I be heard?”
“Yes, you may, Ms. Able.”
“With due respect, Your Honor, at the last master calendar you said this would be the final continuance. This detained case has been pending for months, and you have given counsel a more than reasonable opportunity to file for relief. At this point, the DHS must request that you deny any further continuance and move that you enter an order of removal.”
“Well, I sympathize with your position, Ms. Able. I did say this would be the last continuance, and I’m as frustrated as you are. But I note that the respondent is from a country where we routinely grant asylum, often by agreement or with no objection from your office. Therefore, I feel that we must get to the merits of his claim. Let’s do this. Mr. Queless, I’m going to give you an ‘incentive’ to get this filed. If the I-589 is not complete and ready to file at the next hearing — no more excuses, no more ‘dog ate my homework’ — I’m going to agree with Ms. Able, grant her motion, and enter an order of removal against your client. Do you understand?”
“Yes, Your Honor. I’ll have it here at the master in three weeks.”
“Anything further from either counsel?”
“Nothing from the DHS, Your Honor.”
“Nothing from the respondent, Your Honor.”
“Hearing is continued.”
“How are you this afternoon, Mr. Garcia?”
“Spanish your best language?”
“Is this your first appearance before me?”
“You’re going to look for a lawyer before we proceed with your case?”
“Do I need a lawyer, judge?”
“Depends on what you want, Mr. Garcia. I can send you back to Guatemala at government expense or give you voluntary departure if you wish to pay your own way and avoid having a formal removal order on your record. Is that what you want?”
“Oh, no, judge. I don’t want to go back.”
“Then, you need a lawyer, sir. Officer, please give Mr. Garcia the legal services list. Mr. Garcia, this is a list of organizations in Virginia that might be willing to represent you at little or no charge if you can’t afford a lawyer. You should also check with family and friends to see if they can help you nd a free or low-cost lawyer to take your immigration case. I’ll set your case over for three weeks to give you a chance to look.”
“Can I come back next week?”
“You won’t be able to find a lawyer by then, sir. Take the three weeks. If you don’t have a lawyer by then, we’ll go forward without one.”
“Okay, Your Honor.”
“Good luck in finding a lawyer, Mr. Garcia. The clerk will issue the notices. Who’s next, Madam Clerk?”
Out of court. Satisfied. Tired. Drained — like a Steph Curry three-pointer. Find my colleagues. Fresh air. Walk in the park. Talk sports, politics, weather. Visit Starbucks. Final refill. Recharge batteries. Master tomorrow morning. Fifty non-detained. Too many. The beat goes on. Walking free. Not an “alien.” Glad. Lucky. Thankful.
14 Immigration and Nationality Act (INA) § 240(b)(1).
15 This account is written by Hon. Paul Wickham Schmidt, who served as the chairman of the Board of Immigration Appeals before being appointed to the Arlington Immigration Court in May 2003, where he served as an immigration judge for 13 years before recently retiring from that position. While the names he has provided in this account are entirely fictional, the situations he describes are based on his own wealth of experience adjudicating cases in immigration court.
The full citation is:
Ahmed, Saba; Jordan, Rachel; Appelbaum, Adina, The Human Cost of IIRIRA — Stories From Individuals Impacted by the Immigration Detention System, 5 JMHS 194, 206-11 (2017). Co-author Adina Appelbaum is a former Arlington Immigration Court legal intern and one of my “all-star” students from “Refugee Law & Policy” at Georgetown Law. Read the entire collection of interesting and moving human stories here:
Click Here for my 3-page treatise “Practical Tips for Presenting An Asylum Case In Immigration Court” (Rev. Feb. 2017); PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE-02-17-17
Click here for my accompanying lecture, “Practical Tips, UDC Law Version:” Practical Tips for Presenting an Asylum Case in Immigration Court-UDCVersion-02-21-17
Click here for Judge Harbeck’s “The Commonsense of Direct and Cross-Examinations In Immigration Court” (NJ Lawyer @ 30): NJLFeb2017
“As international students across the country grappled this week with the fallout from President Donald Trump’s immigration executive order, a group of law students were bracing to defend undocumented immigrants.
Student-attorneys from GW Law School’s Immigration Clinic arranged to hold information sessions for international students and collect donations to educate the public about what they called a misunderstood immigration system and the potential impact of Trump’s executive order.
The order blocked all refugee resettlement for four months and banned entry into the United States for citizens from seven Muslim-majority countries for 90 days. On Friday, a federal judge temporarily halted the order, reopening the country’s borders to previously blocked travelers and refugees.
While attorneys said no more students than usual have called for legal representation, they were barraged with emails from concerned international students.
The clinic co-hosted a “Know Your Rights” presentation Thursday with the Muslim Law Students Association to offer advice for non-resident students who were concerned about their immigration status.
“We’re trying to be more proactive. I think everybody right now wants to be more proactive and wants to know what can we do,” clinic attorney and law school student Fanny Wong said.
The clinic provides free legal representation for clients who face deportation or are seeking asylum or U.S. citizenship, student-attorneys said. On Tuesdays and Wednesdays, law school students wait by the phone fielding calls from immigrants who need help. Each of the nine law students takes in an average three clients at a time. The length of each case varies, some drag though the legal system for years requiring multiple students to take up the case.
Attorneys said the clinic currently didn’t have any clients from the seven affected countries, but Wong said she had a client from Sudan who became a naturalized citizen in October after a nearly nine-year-long process.
“Can you imagine the situation that she would have been had this been two months ago?” she said. “She’s relieved as well, but she’s also scared for her family and friends.”
There will be no shortage of need for well-trained immigration and Constitutional lawyers on all sides of these issues. And, there also will be a continuing need for fair, thoughtful, scholarly judges who can find the way through the legal labyrinth of immigration and nationality law at the intersection with Constitutional protections and authorities.
My good friend and former BIA colleague, Hon. Lory Rosenberg writes:
“I’m proud to announce that my former BIA colleague, Immigration Judge Paul W. Schmidt (Ret.) will join us as a special guest for the very first meeting of IDEAS First 100 Days Mastermind, at 4PM ET next Tuesday, January 31st!
I’ve invited Judge Schmidt to freely share his thoughts and ideas with us, as well as to participate fully in our mastermind discussion.
As we dig through the existing labrynthine immigration statute – the one with the unfixed ’96 — and as we confront the ill-advised, anti-immigrant Executive Orders just signed by President Trump – the ones that abrogate our refugee protection obligations – l know Judge Schmidt’s wisdom and reflections will provide priceless inspiration and guidance.”
Thanks for the kind words, Lory! The feeling is mutual. For more information on the seminar, go on over to Lory’s Mastermind website at:
My good friend and former colleague Judge Dorothy Harbeck of the United States Immigration Court, Newark New Jersey and Dr. Alicia Triche have written a terrific short article on cross examination in Immigration Court, “Terms so Plain and Firm as to Command” for the upcoming January/February 2017 Edition of The Federal Lawyer, published by the Federal Bar Association.
As a former trial judge, there were few things more frustrating than spending an afternoon with an attorney who was unable to present his or her case in a concise, effective manner so that it kept my attention (and made it easy for me to follow the story and take notes). You also have to think about the interpreter; a convoluted compound question in English will be virtually incomprehensible after translation.
So thanks to Judge Harbeck and Dr. Triche for helping to make judicial afternoons shorter, more productive, and, hopefully, more enjoyable for all.
The full article is reproduced below (alas without pictures and some of the fancy formatting) by permission from judge Harbeck.
Terms so Plain and Firm as to Command
Assent: Preparing and Conducting Optimal
Direct Examination of the Respondent
by Hon. Dorothy Harbeck and Dr. Alicia Triche
Immigration Law Update
Hon. Dorothy Harbeck is the eastern regional vice president of the National Association of Immigra- tion Judges (NAIJ) and a federal Immigration Judge stationed in Elizabeth, N.J. Dr. Alicia Triche is sole proprietor at Triche Immigration Law, a Memphis, Tenn. based private practice that focuses on appeals, research support for fellow attorneys, and refugee cases. In 2013, Dr. Triche received a D.Phil. in international refugee law from Oxford University.
[T]o place before mankind the common sense of the subject, in terms so plain and firm as to com- mand their assent.—Thomas Jefferson, describing the purpose of the Declaration of Independence1
Courtroom drama is a mainline artery in U.S. culture. From Atticus Finch to the ill-fitting glove, legendary trial-tales etch themselves into our blood- streams, solidifying the core value of the rule of law. The centerpiece of these trials is direct examination, during which the skillful attorney is expected to draw the best possible answers from a story-filled witness. Immigration Court is also a part of this landscape. “Individual calendar hearings” go forward with great frequency, and, though often truncated compared to their federal counterparts, they do usually feature that great legal classic—direct examination. Still, despite its legendary importance, nothing in immigration trial practice is more overlooked than direct examination.
It is well known that the federal rules of immigra- tion do not apply in immigration proceedings. Instead, “immigration judges have broad discretion to conduct and control immigration proceedings and to admit
and consider relevant and probative evidence.”2 As a practical matter, however, certain types of evidence should be avoided as much as possible—most notably, leading questions. The basic tools of direct examina- tion are open-ended, non-leading questions that call for a narrative response. The lawyer should effectively blend into the background, allowing the witness to be the featured act. It is the respondent, not the attorney, who must present the coherent and logical statement of facts that is essential to the court’s decision.
In order to make that happen, both the attorney and the witness must be utterly prepared. Both must know the story that is being elicited—including the weak parts of the claim, which should be brought forward and addressed upfront. The attorney should have a list of every required element of the claim and know which facts are material to each. The witness must understand their own story and the trial process,
be ready to work with an interpreter, know how
to listen to the question posed and how to answer (truthfully) no more than the questioned asked, and be ready to remain calm on stand. All of this takes specific practice and thorough preparation. Simply telling the witness that they will be questioned on the stand is not enough. The attorney must ensure that everyone is thoroughly prepared.
When both attorney and witness know and under- stand the story to be told, questions can be formatted properly for direct examination. A leading question
is one that suggests an answer; contains an answer within it; or, in the strictest application of the category, calls for a “yes or no” response. Non-leading questions are open-ended and begin with “who,” “what,” “when,” “where,” and “why,” as opposed to “are,” “did,” “will,” “won’t,” and “isn’t.” Here is an example of the same
set of standard opening questions, in both leading and non-leading form:
What is your name?
What is your birthday?
Sept. 19, 1962.
Where were you born?
Leningrad, USSR. Now, it’s St. Petersburg, Russia, again, just like when my grandmother was born there.
Are you a citizen of any country or countries?
What country are you a citizen of?
Russia. Used to be a Soviet citizen.
Are you a citizen of any other country?
Your name is Anna Ahmatova, right?
And were you born on Sept. 19, 1962?
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In St. Petersburg, Russia?
No, in Leningrad, USSR.
But you told the ICE officer it was St. Petersburg, right?
And Russia is the only country you are a citizen of, right?
Leading questions cannot be avoided altogether, but they must be avoided whenever possible because they compromise the accuracy of the evidence and the fundamental fairness of proceedings. And, even among non-leading questions, some are better than others. In particular, there is a difference between a “narrative” and a “specific” approach. Consider the following two sets of questions.
The first set:
Have you ever been convicted of a crime?
I had a DUI.
When was this?
June 15, 2003.
Where was the conviction?
I was out drinking at a bar with my friends after work. This was before I met my girlfriend. I got pulled over because I was speeding, and I got a DUI. I went to jail for a few days, but I paid all my fines now.
Here is the second set:
Have you ever been convicted of a crime?
How many times?
What month and year did this conviction occur?
In what county and state did this conviction occur?
What sort of penalty, if any, did you receive?
A few days of jail time.
Was any person injured as a result of your drinking and driving that night?
The first is the “narrative” approach, allowing the witness to tell her own story about how the DUI occurred. The second approach asks mostly non-leading, but highly specific questions designed to make sure the essential facts of the claim are elicited with efficien- cy. From a persuasive standpoint, the narrative approach is usually preferred. However, not every witness is able to tell their story effectively in that context. It is up to the attorney to be flexible and make sure that all essential facts are elicited in the manner that best works for the individual.
Direct examination should also be crafted so as to avoid ob- jections. Though there are no set rules of evidence, immigration regulations do specifically require that all testimony be “material and relevant.”3 In addition, proceedings must be fundamentally fair
and comport with due process.4 Objections in immigration court are generally guided by those two standards. Information must not be more prejudicial than probative, and a “relevant” statement has a tendency to make the existence of a fact “more or less probable.”5 Objections to relevancy are common (if not commonly sustained) and counsel should be ready to articulate the materiality of any ques- tion being asked. Other immigration court objections include: calls for an unqualified opinion; compound question; calls for speculation; mischaracterizes earlier testimony; calls for a legal conclusion; and coaching of the witness. If a witness is being harassed, that objection can also be stated for the record, with a specific description of the objectionable conduct.
When direct examination metes out its purpose, the respondent’s story is clear, complete, and, above all, persuasive. Says clinical pro- fessor David Chavkin: “If we think about the stories that have stayed with us over time, about the stories that have been most persuasive, these stories do not focus solely on a single critical event or a single moment in time…. Instead, they ordinarily represent a detailed, chronological narration of interrelated events with a beginning point, a connected point, and a termination point.”6 But, most importantly, to be legally effective, that chronology must be presented in its prop- er legal format: in terms so plain and firm, as to command assent.
The views expressed here do not necessarily represent the official position of the U.S. Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of the NAIJ. This article is solely for educational purposes, and it does not serve to substitute for any expert, professional and/or legal representation and advice.
1Letter from Thomas Jefferson to Henry Lee, May 8, 1825, available at tjrs.monticello.org/letter/436 (last visited Oct. 10, 2016).
This column is based upon a trials skills presentation by Judge Harbeck, “Probative and Fundamentally Fair: Testimony in U.S. Immigration Court” (Seton Hall Law School and New Jersey State Bar Association) and Judge Harbeck’s article, “The Commonsense of Direct and Cross Examinations in Immigration Court,” New Jersey Lawyer Magazine #296, expected publication Jan. 2017.
2Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010), citing § 240(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(l) (2006); 8 C.F.R. §§ 1003.36, 1240.1(c), 1240.7(a) (2010).
38 C.F.R. § 1240.7(a) (2016).
4See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993); see also Mathews v. Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598 (1953).
5FED. R. EVID. 401.8.
6DAVID F. CHAVKIN, CLINICAL LEGAL EDUCATION: A TEXTBOOK FOR LAW SCHOOL CLINICAL PROGRAMS 97 (LexisNexis 2002).
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