AFTER 16 YEARS OF LITIGATION, BARR REVERSES BIA, STICKS IT TO FORMER CHILD SOLDIER SUBJECTED TO DURESS! — Matter of NEGUSIE, 28 I&N Dec. 120 (A.G. 2020)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/a-g-barr-on-asylum-persecution-duress-coercion-matter-of-negusie

 

Dan Kowalski reports from LexisNexis Immigration Community:

A.G. Barr on Asylum, Persecution, Duress, Coercion: Matter of Negusie

Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020)

(1) The bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress.

(2) The Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.

“I vacate the Board’s June 28, 2018 decision. The Board’s decision did not adopt the best interpretation of the persecutor bar viewed in light of its text, context, and history, as well as of longstanding Board precedent and policies of the Department of Justice. In addition, the decision did not appropriately weigh relevant diplomatic considerations, and it introduced collateral consequences that would be detrimental to the administration of immigration law. The Board’s decision also placed an initial burden on the Department of Homeland Security (“DHS”) to show evidence indicating the applicant assisted or otherwise participated in persecution, which is contrary to the plain language of the governing regulations. Because the Board incorrectly recognized a duress exception to the persecutor bar, and incorrectly placed an initial burden on DHS to show evidence the persecutor bar applies, I overrule those determinations and any other Board precedent to the extent it is inconsistent with this opinion. I vacate the Board’s decision and remand this matter to the Board with instructions to place the case on hold pursuant to 8 C.F.R. § 1003.1(d)(6)(ii)(B) pending the completion or updating of all identity, law enforcement, or security investigations or examinations. Once those investigations or examinations are complete, the Board should enter an appropriate order.”

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

Fairly predictable given the regime and a system that lets a political official interfere in the quasi-judicial decision-making process in violation of due process and fundamental fairness! Remarkably, Barr injects “diplomatic considerations” into what is supposed to be due process, impartial adjudication system! He also shifts the burden of proof to the respondent, rather than the DHS where the BIA had placed it.

This case was remanded by the U.S. Supreme Court after the BIA got it wrong more than a decade ago. If it goes back to the Court again, the former “child soldier” in 1995, when the events occurred, could well be a “senior citizen” by the time the system decides his fate. 

In the course of remanding the case, the Supremes noted that different interpretations of the statute by the BIA with respect to the duress defense were available. As has become the norm these days, faced with various reasonable possibilities, the Attorney General chose the one “least favorable to the foreign national.”

This case also points out the absurdity of the “Chevron doctrine” in immigration. In 2009 when this case was before the Supremes, there was a clearly developed record. Additionally, it was clear that a number of the then Justices had well-defined, if conflicting, views on the “duress defense” in this context. Yet the Court remanded for the BIA to exercise “Chevron authority” to make another interpretation. That process has taken 11 years!

Whatever happened to the plain old fashioned idea that Justices of our Supremes are paid to decide what the law is so that it can be carried out by the Executive?As I have stated on many occasions, “Chevron deference” is nothing more than “judicial task avoidance” at the highest levels!

The “good news” from the respondent’s standpoint is that the BIA’s prior grant of “deferral of removal” to Eritrea stands. Therefore, it seems likely that he will be able to remain in the U.S. in “limbo” status for the rest of his life, no matter how the asylum litigation eventually plays out.

It also illustrates the extent to which the Government will go to deprive an individual of a chance to regularize status in the United States. This protracted litigation isn’t about “removing a bad guy” from the U.S. Rather it’s about insuring that a foreign national who has been residing here with no apparent incidents for the past 16 years, and is likely to be among us for the rest of his life, will continue to “twist in the wind” without permanent legal status or any chance of becoming a full member of our society.

A regime that mindlessly rushes cases to deportation without fair deliberation in many cases has no problems making the system move at a glacial pace, wasting time, and squandering legal resources when it wants to screw the asylum seeker.

PWS

11-06-20

OUR IMPLEMENTATION OF ASYLUM LAW HAS ALWAYS BEEN FLAWED — NOW, TRUMP HAS SIMPLY ABROGATED THE REFUGEE ACT OF 1980, WITHOUT LEGISLATION — But, Led By The Complicit Supremes, Federal Appeals Courts Seemingly Have Lost Interest In Protecting Human Rights, Saving Lives, & Holding The Regime Accountable — America No Longer Has A Functioning Asylum & Refugee Protection System

https://www.washingtonpost.com/outlook/2020/03/21/coronavirus-cant-be-an-excuse-continue-president-trumps-assault-asylum-seekers/

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

 

By Yael Schacher in WashPost: 

The coronavirus has crowded out many policy debates. But in one area, immigration, it is fusing with the Trump administration’s broader agenda.

Using covid-19 as a cover, the administration is making its most overt move yet to eliminate the right to seek asylum in the United States. Officials claim that because of coronavirus, beginning March 21, they swiftly can return or repatriate asylum seekers at the U.S.-Mexico border. This unprecedented move violates U.S. and international law and may actually exacerbate the spread of covid-19 at the border. It also betrays the core promise of the 1980 Refugee Act, signed 40 years ago this week.

With this law the United States belatedly accepted the definition of a refugee established by the 1951 U.N. Convention and 1967 Protocol on the Status of Refugees. The Act passed Congress with overwhelming bipartisan support and made resettling refugees from abroad a part of the nation’s immigration policy. But the Act also accorded people fleeing persecution a chance to seek asylum if they arrived at U.S. borders or already were in the United States.

The law established that people could seek asylum regardless of their immigration status or mode of entry and prohibited U.S. authorities from sending asylum seekers to a place where their lives or freedom would be threatened. It is crucial to remember this right now, given the all-out assault on the U.S. asylum system by the Trump administration, which began even before the coronavirus. The proposed new ban on asylum that would turn back asylum seekers will endanger the lives of even more refugees and further jeopardize our collective public health by sending people to live on the Mexican side of the border where they will lack adequate shelter and care and where there is no way to prevent the spread of coronavirus. As the United Nations High Commissioner for Refugees has written, turning away asylum seekers would send them into “orbit” in search of a refuge and, as such, may contribute to the further spread of the disease.

Before the passage of the Refugee Act in 1980, the United States was violating the human rights of asylum seekers, in particular the thousands of Haitians who arrived in Florida by boat. Instead of having their asylum cases heard they were systemically detained by the Immigration and Naturalization Service, denied due process in the immigration courts and threatened with deportation to the persecution they had fled.

Haitian leaders and refugee advocates in New York and Florida protested against this treatment and, in May 1979, sued the government in federal court in Haitian Refugee Center v. Civiletti. In his 1980 decision, Judge James Lawrence King (a Nixon-appointee) excoriated the U.S. government for violating the rights of Haitians and prejudging their claims. As King wrote, the evidence presented at trial was “both shocking and brutal, populated by the ghosts of individual Haitians — including those who have been returned from the United States — who have been beaten, tortured, and left to die in Haitian prisons.”

King also referred to convincing evidence provided by Amnesty International and the Lawyers Committee for International Human Rights (now Human Rights First) that asylum seekers were mistreated both by U.S. immigration authorities and upon return to Haiti.

As the litigation was going on, members of Congress worked on the language of the Refugee Act. Amnesty and the Lawyers Committee suggested to then-Rep. Elizabeth Holtzman (D-N.Y.) language be added specifically to prevent people from being returned, as Haitians had been, and safeguard the right to seek asylum upon reaching anywhere in the United States. Without such a safeguard written into the law, the right to seek asylum would not be secure outside of South Florida, where Judge King’s ruling applied. Grounding the right to seek asylum in a statute also makes it harder to limit federal court review of executive branch policies that violate it.

Holtzman adopted Amnesty’s language into the House version of the bill, and it became the first provision of section 208 of the Immigration and Nationality Act. Holtzman’s language explicitly provided for the right to seek asylum not only to those who came by sea but also to those who crossed a land border or arrived at a border port of entry. Unfortunately, Holtzman did not accept the Lawyers Committee’s recommendation that the Refugee Act also include “guidelines” for determining who would be eligible for asylum and how they would prove it. It left these procedures to the executive branch.

Nonetheless, as she wrote in her report on the bill, “The Committee wishes to insure a fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law.”

Almost immediately after the Refugee Act went into effect in April 1980, Fidel Castro allowed thousands of Cubans to sail to the United States. As the Carter administration devised a special program to deal with this influx, the development of general asylum procedures was put off (with only interim regulations published). Beginning in 1981, the Reagan administration embraced deterrence through interdiction, detention and externalization as the path to deal with asylum seekers, shirking the intention of Holtzman and Congress, which had ensured the right to seek asylum in the 1980 Act.

These strategies remain the norm to this day. As Sen. Ted Kennedy wrote in 1981, the Act would be an effective instrument only if U.S. leaders used it wisely, to serve the country’s humanitarian traditions. The U.S. government has not paid adequate attention or resources to ensure fair and efficient adjudication of asylum claims. Indeed, Congress itself appropriates no money to United States Citizenship and Immigration Services for asylum adjudication and has allowed the immigration courts to be weaponized against asylum seekers. Over the last three years, the Trump administration has engaged in an all-out assault on asylum that already has restricted the ability of many immigrants to qualify for refuge and sent over 60,000 people to wait in Mexico, where they are forced to live in dangerous, inhumane conditions in open-air encampments and shelters.

. . . .

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

Read the rest of the article at the link.

This article inspires me to do a “reprise” of remarks I made at the Federal Bar Association’s Annual Immigration Conference in Austin, Texas, in May 2018. I describe the post-1980 history of asylum in the Immigration Courts and how the Obama Administration’s exceptionally poor and often tone-deaf handling of asylum issues at EOIR, and particularly their ill-advised response to the so-called “Southern Border Crisis” in 2014, seriously deteriorated due process and the functioning of the Immigration Courts while “paving the way” for even more blatantly scofflaw actions by the Trump regime.

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.

Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!

In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”

In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).

Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them;illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”

The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have beengranted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies.That’s what the “New Due Process Army” is all about.

PWS

O3-24-20

11TH CIR: BIA GETS IT WRONG IN DENYING JOURNALIST’S MTR — CONCURRING OPINION HINTS THAT MAJORITY OF “SESSIONS LEGACY BACKLOG” MIGHT HAVE BEEN ILLEGALLY INSTITUTED!

Here’s the opinion in Duran-Ortega v. U.S. Attorney General, including the lengthy concurring opinion by Judge Martin:

11th Cir. Stay of Removal in Duran-Ortega, Pereria-based

Here’s the “key quote” from Judge Martin:

Although one meritorious argument is enough to satisfy the first Nken factor, Mr. Duran- Ortega’s emergency motion for a stay presents a second, equally compelling argument that the agency’s in abstentia removal order must be rescinded in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). The governing statute, 8 U.S.C. § 1229(a)(1)(G)(i), requires that a notice to appear (“NTA”) “specify[] . . . [t]he time and place at which the proceedings will be held.” Once a charging document, such as an NTA, is filed with the immigration court, the court may then exercise jurisdiction over a petitioner’s removal proceedings. See 8 C.F.R. § 1003.14 (“Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” (emphasis added)). The Supreme Court’s recent decision in Pereira appears to suggest, as Duran-Ortega argues, that self-described “notice to appears” issued without a time and place are not, in fact, notice to appears within the meaning of § 1229. 138 S. Ct. at 2113–14. In particular, Pereira emphasized that § 1229 “does not say a ‘notice to appear’ is ‘complete’ when it specifies the time and place of the removal proceedings.” Id. at 2116. “Rather,” the Supreme Court explained, § 1229 “defines a ‘notice to appear’ as a ‘written notice’ that ‘specifies,’ at a minimum, the time and place of the removal proceedings.” Id. (alteration omitted) (emphases added). In other words, just as a block of wood is not a pencil if it lacks some kind of pigmented core to write with, a piece of paper is not a notice to appear absent notification of the time and place of a petitioner’s removal proceedings.
Pereira’s reasoning has led some district courts to conclude that a self-styled “notice to appear” lacking the requisite time and place of the hearing is legally insufficient to vest an immigration court with jurisdiction. See, e.g., United States v. Zapata-Cortinas, 2018 WL 4770868, at *2–3 (W.D. Tex. 2018); United States v. Virgen-Ponce, 320 F.Supp.3d 1164, 1166 (E.D. Wash. 2018). Other district courts have disagreed. See, e.g., United States v. Romero- Colindres, 2018 WL 5084877, at *2 (N.D. Ohio 2018). Most recently, the BIA issued a published decision holding that a defective NTA is sufficient to vest jurisdiction in an immigration court “so long as a notice of hearing specifying this information [on time and date] is later sent to the alien.” Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018). This Court, however, need not defer to Bermudez-Cota if the agency’s holding is based on an unreasonable interpretation of the statutes and regulations involved, or if its holding is unambiguously foreclosed by the law. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–45, 104 S. Ct. 2778, 2782–83 (1984); see also Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 911 (1997). In light of Pereira and the various regulations and statutes at issue here, it may well be the case that deference is unwarranted.
As a result, it is clear to me that Mr. Duran-Ortega has presented “a substantial case on the merits” sufficient to satisfy the first Nken factor, given the other three factors “weigh[] heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565–66 (5th Cir. Unit A 1981).2

Here’s the SPLC summary of the case:

https://www.splcenter.org/news/2018/11/29/splc-wins-stay-deportation-journalist-whose-work-challenged-ice

The 11th U.S. Circuit Court of Appeals granted a stay of removal today for Spanish-language journalist Manuel Duran.

Without the stay, Duran – who was unlawfully arrested and detained in retaliation for reporting on controversial issues related to law enforcement in Tennessee – could have been deported at any time.

Earlier this month, the court granted a temporary, two-week stay that expired today. The stay that the court issued today will remain in place until Duran’s appeal has concluded.

“We are grateful and pleased that the court acted to stay Mr. Duran’s deportation so that his appeal may be fully heard,” said Kristi Graunke, senior supervising attorney for the SPLC. “As a journalist who has dedicated his career to reporting on government misconduct, Mr. Duran faces serious danger if he is deported to El Salvador. We will continue to fight for his freedom and to ensure he receives a fair hearing on his asylum claims.”

Duran has been detained for over seven months at LaSalle Detention Facility in Jena, Louisiana, after working as a reporter in Memphis, Tennessee, for more than 10 years. The SPLC took his case after he was placed in Immigration and Customs Enforcement (ICE) custody following his arrest by Memphis police in April.

Duran is a respected reporter who wrote for the Spanish-language publication he founded: Memphis Noticias. He was known for his investigative journalism. His work frequently highlighted issues of importance to Memphis’ Spanish-speaking community, including local law enforcement’s collaboration with ICE.

On April 3, Duran was covering a Memphis event relating to the 50th anniversary of Martin Luther King Jr.’s assassination. The demonstration included a protest of local law enforcement’s practice of detaining suspected immigrants and handing them over to ICE.

During the event, Duran wore his yellow press badge and did not engage in the protest. He was following police orders to step away from the protesters when an officer pointed to him and yelled, “Get him, guys.”

Because his reporting exposed ties between local police and ICE in detaining immigrants, Duran was singled out and arrested amid a pool of other journalists covering the protest. He was falsely accused of disorderly conduct and obstructing traffic.

Duran is like thousands of other immigrants facing deportation, who face lengthy detention even if they have meritorious claims. Held captive in detention centers for months and sometimes years, they are forced to endure terrible conditions and separation from loved ones and their communities.

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

As Attorney General, Jeff “Gonzo Apocalypto” Sessions used every tool at his disposal to destroy Due Process in the U.S. Immigration Courts, discriminate against asylum seekers and their (often pro bono) hard-working lawyers, and artificially “jack up” the court backlog to increase pressure on Immigration Judges to cut corners and ultimately to collapse the system entirely (thus, presumably, leading to calls for an unconstitutional “summary removal system” without any court hearings). I estimate that 75% to 80% of the cases in the current 1.1 million “backlog” (largely the result of management interference by DOJ politicos over the past three Administrations leading to “Aimless Docket Reshuffling”) were probably commenced in violation of the Supremes’ “Pereira reading” of required statutory notice.

Ironically, Sessions’s “gonzo-like” fixation on ruining the system and punishing migrants, rather than taking the reasonable steps necessary to improve Due Process and efficiency, could have the effect of drastically cutting the backlog by removing the vast majority of “backlogged” cases from the docket without compromising anyone’s Due Process. And, once off the docket, most of those cases, which represent long-time residents with good character and substantial equities, should properly remain off-docket pending a Congressional legalization program. That would actually rationalize the system and enable the enlarged Immigration Court to “keep current” on a more realistic and appropriate docket of 200,000 to 300,000 new cases per year (provided the Immigration Court is removed from the DOJ and put under independent, professional, apolitical court management stemming from the judges themselves).

Another notable point — by allowing itself to make decisions based on politically preferred outcomes, typically anti-immigrant, rather than sound and fair legal reasoning, the BIA is rapidly depriving its decisions of so-called “Chevron deference” from the Article III (“real”) Courts.

PWS

12-01-18

GONZO’S WORLD: BOGUS “COURT SYSTEM” REVEALED IN ALL OF ITS DISINGENUOUS INGLORIOUSNESS — SESSIONS MOVES TO TRASH THE “LIMITED DURESS” DEFENSE FOR ASYLEES BEFORE TRUMP TURNS HIM BACK INTO A PUMPKIN (AFTER HALLOWEEN) – Why Have A BIA If It Is Only Permitted To Decide Major Issues In Favor Of The DHS Position? — Matter of Daniel Girmai NEGUSIE, 27 I&N Dec. 481 (A.G. 2018)

https://www.justice.gov/eoir/page/file/1101746/download

Cite as 27 I&N Dec. 481 (A.G. 2018) Interim Decision #3943

Matter of Daniel Girmai NEGUSIE, Respondent

Decided by Attorney General October 18, 2018

U.S. Department of Justice Office of the Attorney General

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on: Whether coercion and duress are relevant to the application of the Immigration and Nationality Act’s persecutor bar. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (2012).

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before November 8, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before November 15, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before November 15, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

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

Here’s the BIA headnote a link to Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018):

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

http://immigrationcourtside.com/wp-content/uploads/2018/06/3930.pdf

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

Remains to be seen whether Session’s November 16, 2018 “deadline for brief submission” will exceed his job tenure! But, don’t kid yourself: this decision has already been written, maybe with input or assistance from a “restrictionist” organization. And, even if Sessions departs shortly after the midterms, as most expect, I’m sure Trump will be able to find another “restrictionist patsy” to do his “immigration dirty work” for him.

Want to know how ludicrous Sessions’s action is:  This case has been pending before the Immigration Court, the BIA, the Supreme Court, and now the Attorney General for nearly 15 years, with no end in sight. After Sessions rules against Negusie, the case will go back to the Court of Appeals, and then, perhaps, back to the Supremes, assuming Mr. Negusie lives long enough to see it through to its conclusion. When it comes to removing folks without Due Process, “time is of the essence” for guys like Sessions; but, when it comes to screwing asylum seekers, “time has no essence” — whatever it takes, no matter how long it takes.

Additionally, this is a great illustration of the absurd dereliction of duty in the Supreme’s so-called “Chevron doctrine.” It’s a purely judge-created device that enables the Supremes to avoid deciding important and potentially controversial legal issues by, in effect, “shuffling them off to Buffalo” (a/k/a the Executive Branch). Once in “Buffalo,” sometimes dysfunctional and often biased Executive Branch agencies can exercise their (often purely imaginary) “expertise” in construing ambiguous statutes (which is, after all, a question of law that constitutes the only function of the Article III Courts). And, does anybody (other than Jeff Sessions) really think that a politico like Jeff Sessions has any real “expertise” in immigration adjudication?

Interestingly, Justice Gorsuch, like his conservative predecessor the late Justice Scalia, has been openly skeptical of the Chevron doctrine. Perhaps ironically, he, along with the outlandish actions of the Administration that appointed him, could ultimately spell the well-deserved end or limitation of “Chevron deference.”

As we say in the business, stay tuned.  But, please, please, don’t “hold your breath” on this one!

PWS

10-18-18

🎃🎃🎃

 

 

 

BETTER LATE THAN NEVER? – After 9 Years, The BIA Finally Completes The Supreme’s Remand – Creates A “Limited Duress Defense” To Persecutor Bar, With Judge Malphrus Dissenting – Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Here’s the link:

3930

BIA HEADNOTE:

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

BIA PANEL: APPELLATE IMMIGRATION JUDGES GRANT, GREER, MAPPHRUS

OPINION BY: Judge Edward R. Grant

CONCURRING & DISSENTING OPINION: Judge Garry d. Malphrus

KEY QUOTE FROM MAJORITY:

In a decision dated May 31, 2005, an Immigration Judge denied the applicant’s applications for asylum and withholding of removal but granted his request for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against Torture”). On February 7, 2006, we dismissed the appeals of both the applicant and the Department of Homeland Security (“DHS”).1 This case is now before us on remand pursuant to a decision of the United States Supreme Court in

1 The DHS does not now challenge the applicant’s grant of deferral of removal under the Convention Against Torture.

page1image1919785008

347

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Negusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and the arguments presented by the parties and amici curiae, we will again dismiss the applicant’s appeal.2

We conclude that duress is relevant in determining whether an alien who assisted or otherwise participated in persecution is prevented by the so-called “persecutor bar” from establishing eligibility for asylum and withholding of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c) and (d)(2) (2018).3 In this decision, we set forth a standard for evaluating claims of duress in this context. Applying that standard to the uncontested findings of fact in the record, we conclude that the applicant has not established that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.

KEY QUOTE FROM DISSENT:

The United States Supreme Court remanded this case for us to make an “initial determination of the statutory interpretation question,” Negusie v. Holder, 555 U.S. 511, 524 (2009), “with respect to whether an alien who

ORDER: The applicant’s appeal is dismissed.

368

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

was coerced to assist in persecution is barred from obtaining asylum in the United States,” id. at 525 (Scalia, J., concurring). The remand directed us to interpret the statute anew based on principles of statutory construction, free of our prior assumption that Fedorenko v. United States, 449 U.S. 490 (1981), definitively resolved this question. The majority decision is artfully drafted, but it does not engage in this analysis. Instead, the majority reads a duress exception into the 1967 United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and, by extension, the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), that simply does not exist. And it does so essentially by deferring to international expectations of how the Protocol should be interpreted. I cannot agree with this approach.

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

  • Wow! Deferring to international interpretations and expert interpretations from the UNHCR that actually give an asylum applicant a very circumscribed break for actions he or she was forced to take. Very “Un-Boardy.” Could actually be “career threatening.” No wonder Judge Malphrus wanted to separate himself from any such rational and reasonable actions in the “Age of Sessions & Trump.”
  • 9 years in the making, during which the DHS position changed several times, is a pretty good argument against “Chevron deference” (a/k/a “task avoidance by life-tenured Article III Judges”). What were Immigration Judges supposed to do during those 9 years?
  • Odds on whether or how long it will take “Gonzo” to intervene?

PWS

06-29-18

 

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder.  (In addition to the former Board member, one of the included IJs also served as a temporary Board member).   The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows.  After initially ceding a limited duress exception to the Board, DHS recently changed its position.  In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim.  First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself.  As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden.  The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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

Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17

NEW PRECEDENT: Applicant Bears Burden Of Showing Mandatory Denial Inapplicable: MATTER OF M-B-C-, 27 I&N Dec. 31 (BIA 2017)

https://www.justice.gov/eoir/page/file/967306/download#31

BIA HEADNOTE:

“Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a preponderance of the evidence that such grounds do not apply.”

PANEL:  Appellate Immigration Judges Malphrus, Mullane, Liebowitz

OPINION BY:  Judge Mullane

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

This was an unusual case, with lots of competing evidence on both sides. But, normally, this issue came up in routine NACARA or even TPS cases.

Here’s a more “normal”scenario.”  The respondent was a private in the El Salvaoran Army during the Civil War in the 1980s. The DHS introduces old country reports and excerpts from the “El Rescate Database” showing that the respondent’s unit was in the department where human rights abuses took place. That’s sufficient to shift the burden to the respondent. to prove he did not engage in persecution.

The respondent testifies that he performed routine duties around the base and was never involved on combat, never harmed any civilian, and never witnessed any civilian being harmed.

That’s the case! Now the Immigration Judge has to make a decision on that skimpy evidence.

Things to keep in mind:

!) The U.S. Government was supporting the Salvadoran military during the Civil War. Indeed, a number of the individuals that DHS now claims were “persecutors of others” received military training in the U.S. or from U.S. officers.

2) The INS and the Immigration Courts summarily rejected asylum claims from individuals who suffered severe human rights violations amounting to persecution inflicted by the Salvadoran Government, the Armed Forces, the Civil Patrol, and entities aligned with them, such as so-called “death squads.”

Victim or persecutor,

Friend or foe,

The U.S. system,

Is a tough go.

PWS

05-19-17

 

 

NEW BIA PRECEDENT: Motivation Irrelevant In “Persecutor Bar” Case — Matter of J.M. ALVARADO, 27 I&N Dec. 27 (BIA 2017)

https://www.justice.gov/eoir/page/file/964491/download

Here is the BIA headnote:

“The persecutor bar in section 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(i) (2012), applies to an alien who assists or otherwise participates in the persecution of an individual because of that person’s race, religion, nationality, membership in a particular social group, or political opinion, without regard to the alien’s personal motivation for assisting or participating in the persecution.”

PANEL:  Appellate Immigration Judges Malphrus, Mullane, Liebowitz

OPINION BY: Judge Malphrus

 

PWS

05-11-17

 

“AYUDA — MAKING AMERICA REALLY GREAT, EVERY DAY” — Meet A Spectacular Nonprofit Legal & Social Services Organization That “Walks The Walk and Talks The Talk” In The DC Metro Area — Read My Recent Speech Here!

AYUDA — MAKING AMERICA REALLY GREAT, EVERY DAY

 

January 11, 2017

 

Verizon Building

 

1300 Eye St., N.W.

 

Washington, D.C.

 

Remarks By Retired United States Immigration Judge Paul Wickham Schmidt

 

Good evening. Thank you Christina,[1] for that wonderful introduction. Thank you, Michael,[2] for extending your hospitality in Verizon’s “state of the art” training center. And, of course, thank you Arleen[3] for inviting me, and for all that you and AYUDA do for our community and for our nation.

 

Even more important, thanks to all of you here for your continued support and promotion of AYUDA’s essential mission — to help hard-working individuals in our community help themselves, through legal assistance and a variety of educational and social support programs. You are AYUDA, and without your continuing support, encouragement, and active participation there would be no AUYDA and hence no place for those vulnerable individuals to seek assistance. Our community and our nation would be immeasurably poorer if that happened.

 

By coincidence, I began my professional career in immigration law in 1973, the year AYUDA was founded. On a personal level, and I know that this touches on only one narrow aspect of AYUDA’s ambitious program, I want to thank all of you for the unwavering support, assistance, and consistent professional excellence that AYUDA provided to the U.S. Immigration Court in Arlington, Virginia during my 13-year tenure as a judge, and, of course, continuing on after my retirement.

 

The sole role of an U.S. Immigration Judge is to provide fair, impartial hearings that fully comply with the Due Process Clause of the United States Constitution to individuals whom the Department of Homeland Security (the “DHS”) has charged with being removable from the United States. Without competent legal representation of the individual before the court, known as a “respondent,” the job of insuring due process can be totally daunting. With dedicated professional groups like AYUDA coming to the defense, my task of conducting fair hearings magically went from “daunting” to “doable.”

 

Representation makes a real difference in the lives of individuals. Represented individuals succeed in securing relief in Immigration Court at a rate of at least five times greater than those appearing without representation. But, for some of the most vulnerable populations, such as “recently arrived women with children,” bureaucratic lingo to describe actual human beings seeking protection from rampant violence in Central America whose removal has been “prioritized” in Immigration Court, the “success differential” is simply astounding: 14 times!

 

I am honored tonight to be in the presence of two of the “real heroes – or, more properly, heroines,” of due process at the Arlington Immigration Court: your own “Hall of Famer,” the incomparable Anya Sykes,[4] and your amazingly talented newly appointed — great choice guys –Executive Director, Paula Fitzgerald. Both were “regulars” in my courtroom.

 

Quite simply, Anya and Paula save lives. Numerous hard working individuals and families in our community, who are contributing at the grass roots level to the greatness of America, owe their very existence to Anya, Paula, and AYUDA.

 

For example, last year alone, AYUDA helped a remarkable 1,900 individuals resolve more than 3,500 matters in our legal system. And, Immigration Court is just the “tip of the iceberg.” Much of the work was done with the United States Citizenship and Immigration Services, with domestic violence victims in local courts, and through AYUDA’s superstar Social Services and Language Services branches.

 

I know we all want to get back to main event – eating, drinking, and being merry. So, I’m going to limit myself to one “war story” about my time with Anya and Paula in court.

 

As some of you probably know, there is a wonderful law enacted some years ago known as “NACARA.” It really could be a model for future laws enabling earned membership in our national community. NACARA has allowed thousands of individuals in our community who decades ago fled violence in Nicaragua, El Salvador, and Guatemala, and have lived law abiding, productive lives here for many years, often in valid Temporary Protected Status, to obtain green cards and get on the track for U.S. citizenship and full participation in the vibrant political life of our community and our country.

 

The basic NACARA criteria were fairly straightforward, and most individuals were able to have their applications granted at the Asylum Office of the USCIS.   But, as with any mass adjudication program, there was group of so-called “dog cases” left over at the end.

 

Most of those involved individuals who had served or were believed to have served with the Salvadoran military or Civil Patrol during the civil war that raged in the 1980s. If you remember, the U.S. supported the Salvadoran government during that civil war, and some of the individuals who served in the Salvadoran Army actually received training or instruction at military installations in the United States.

 

At that time, international human rights groups claimed that the Salvadoran government and military were engaging in large scale human rights violations, many directed against innocent civilians, in an effort to suppress guerilla insurgents. Our Government denied, downplayed, or outright ignored most of these claims and refused asylum to almost all Salvadorans on the grounds that no persecution was occurring.

 

Times change, however, and at some point somebody in our Government actually looked at the evidence and agreed, long after the fact, that the Salvadoran government and military had committed large scale “persecution of others,” even though many of the “others” had been denied asylum in the U.S. based on inability to establish that persecution.

 

By the time I arrived at the Arlington Immigration Court, the DHS was taking the position that nearly all individuals connected with the Salvadoran military were presumed to be “persecutors,” and therefore should be denied NACARA unless the individual could prove, by credible evidence, that he or she did not, in fact, engage in persecution decades earlier during the civil war. These cases were routinely declined at the Asylum Office and “referred” to our court for re-adjudication.

 

As you might imagine, such cases are extremely complicated, requiring the individual not only to have detailed knowledge of the structure and activities of the Salvadoran military during the civil war but also specific knowledge of what individual units and soldiers were doing at particular times, places, and dates, and to be able to coherently account for and corroborate their own activities at those times.

 

Most of those “referred” were hard working, tax paying, law-abiding individuals who had lived in the U.S. for decades, and supported their families, but did not have the necessary funds to pay for good lawyers familiar with, and willing to handle, this type of sophisticated case. The chance of an individual being able to successfully present his or her own case was approximately “zero.” Most were completely bewildered as to why service with the U.S.-supported government of El Salvador, once considered a “good” thing, was now a “bad thing,” requiring mandatory denial of their NACARA applications.

 

This is where talented NGO lawyers like Paula and Anya stepped in. With their help and legal expertise, notwithstanding the passage of decades, individuals were able to document, corroborate, and testify convincingly about their “non-persecutory” activities during the civil war. I recollect that every such NACARA case handled by AYUDA before me eventually was granted, most without appeal or with the actual concurrence of the DHS Assistant Chief Counsel.

 

As a direct consequence, hard working, productive, law-abiding, tax-paying individuals remained in the community, continued to support their families, and, with green cards in hand, could now find better work opportunities and get on the path to eventual U.S. citizenship and full participation in our national community. This is “Lifesaving 101” in action, and Anya, Paula, and AYUDA are the “lifesavers.”  If there were an “Arlington Immigration Court Hall of Fame,” they would certainly be in it. In addition to their outstanding services to AYUDA’s clients, Anya and Paula are inspiring mentors and role models for lawyers just entering the field.

 

In closing, I’ve always tried to keep five important values in front of me: fairness, scholarship, timeliness, respect, and teamwork. Dedicated individuals like Anya and Paula, and great organizations like AYUDA, embody these important values.

 

And, beyond that, these are your values. Your investment in AYUDA and its critical mission is an investment in social justice and the values that have made our country great and will continue to do so into the future.

 

Thanks for coming, thanks for listening, and, most of all, thanks for your investment in AYUDA and turning your values into effective action that saves lives, builds futures, and insures the continuing greatness of America.

 

 

 

 

[1] Christina M. Wilkes, Esquire, Partner, Grossman Law Firm, LLC – Chair, AYUDA Board of Directors.

[2] Michael Woods, Esquire, Vice President and Associate General Counsel, Verizon — Director, AYUDA Board of Directors.

[3] Arleen Ramirez Borysiewicz, Director of Program Initiatives, AYUDA.

[4] Unfortunately, Anya was unable to attend. But, almost everyone in the room was mouthing “Anya” when I said the word “heroine” so I realized that she was “there is spirit” and proceeded accordingly. Anya Sykes was inducted into the AYUDA Hall of Fame in 2013.