🍂FALL FOLLIES: BIA FUMBLES BASIC STANDARDS FOR FUTURE FEAR AND INTERNAL RELOCATION, SAYS 6TH CIRCUIT — Lin v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0205p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-future-fear-internal-relocation-lin-v-garland

“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”

[Hats off to Henry Zhang!]

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”

HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”

This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?

🇺🇸 Due Process Forever!

PWS

09-13-23

🤯 INCREDIBLE! — 2d Cir. Schools EOIR On Adverse Credibility — Chen v. Garland

 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca2.uscourts.gov/decisions/isysquery/58f9e14a-e986-4263-9590-1f525ff8d4f9/2/doc/19-715_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-credibility-chen-v-garland

“Zhi Bo Chen petitions for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Chen was not credible. Because certain reasons for that credibility finding were erroneous, and because we cannot be confident that the IJ would have made the same determination absent those errors, Chen’s petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.”

[Hats off to Gary Yerman!]

Gary Yerman. Esquire
Gary Yerman, Esquire
Managing Partner
The Yerman Group
NY, NY

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My favorite quote from the Circuit’s decision by Judge Raymond J. Lohier (Obama appointee): “We conclude that the IJ misidentified part of Chen’s testimony as inconsistent, improperly relied on trivial inconsistencies, and misconstrued as an omission a part of Chen’s testimony that comported with his Form I-589 asylum statement.” 

But, even with all these glaring defects, the IJ’s findings were affirmed by the BIA without much, if any, critical analysis. What does this say about EOIR under AG Garland?

Credibility should be “bread and butter” for EOIR Judges and particularly the BIA. But, when the “culture” is “any reason to deny,” bad things happen!

As my Round Table colleague Hon. “Sir Jeffery” Chase commented: “You have to wonder what percentage of all BIA decisions contain significant errors.” 

I think that’s a particular concern in unrepresented cases, which are much less likely to reach the Circuits. Additionally, the unduly restrictive legal standard for judicial review means that marginal BIA adverse credibility findings will often get “rubber stamp” affirmances from the Circuits.

Essentially, EOIR often denies the respondent “the benefit of the doubt” in close credibility cases and then the Courts of Appeals give the BIA “the benefit of the doubt.” So, it ends up being a “double whammy” for the respondent!

That’s why it is critical to have individuals effectively represented at the trial level! At each level thereafter, the law skews heavily in favor of the Government! 

That also supports the position that “dedicated dockets” and “expedited dockets” that discourage and impede (one could argue intentionally) effective representation and full presentation of all the evidence should be held to be prima facie denials of due process!

It’s also why I argue that it’s so important that exceptionally well qualified experts with experience representing asylum seekers be appointed to these hugely important (yet widely ignored and under-appreciated) EOIR judgeships! Better judges would make the entire EOIR system fairer and more efficient, without sacrificing due process!

That’s also why appellate victories like this by Attorney Gary Yerman are so impressive and telling about the continuing dysfunction at EOIR! 

Additionally, given the “loading of the system” against the respondent on credibility, the BIA has to REALLY screw up to get reversed, as they did in this case! That, in turn, raises a fundamental unresolved issue: Why is a Dem Administration running a specialized court system that all too often lacks the expertise and judgement to get “bread and butter” issues like this correct in the first instance? 

It’s obvious that a BIA that goofs up cases like this is NOT providing the type of clear, expert guidance to IJs necessary to achieve due process and fundamental fairness on a continuing systemic basis! That should be of huge concern to everyone who values justice in America!

🇺🇸 Due Process Forever!

PWS

08-01-23

🤯 🤯 DOUBLE TAKEDOWN: 4th Circuit Slams BIA For 1) Mindlessly Trying To “Snuff” Allies From Afghanistan War☠️; & 2) Producing Incomprehensible Legal Gibberish 🤪 In Life Or Death Cases! — Two Recent Cases Show Deep Quality, Expertise Problems In Dem-Controlled “Courts” At The “Retail Level” Of U.S. Justice! 🤯🤬

Ben Winograd
Ben Winograd, Esquire
Immigrant & Refugee Appellate Center
Falls Church, VA

1. Ben Winograd, Esquire, is an all-star appellate litigator who would have made a great BIA Chair/Chief Appellate Judge!

Dan Kowalski @ LexisNexis reports:

CA4 on Internal Relocation: Ullah v. Garland

https://www.ca4.uscourts.gov/opinions/221026.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-internal-relocation-ullah-v-garland

“The United States’ war in Afghanistan required regional allies willing to aid the effort. One such ally was Shaker Ullah, a Pakistani businessman who sold supplies to coalition forces. This invoked the wrath of the Pakistani Taliban, which demanded exorbitant payments from Ullah under threat of death. Ullah repeatedly refused, and the Taliban attempted to carry out its threat, promising to hunt him until it succeeded. After losing his business, home, and nearly his life, Ullah fled to the United States seeking asylum. The Immigration Judge and Board of Immigration Appeals both recognized that Ullah suffered past persecution entitling him to a presumption that the Taliban would continue to target him if he returned to Pakistan. But they agreed with the government that because Ullah lived in Islamabad (the capital of Pakistan) for a few weeks without the Taliban finding him, he could live in a new area of the country without fear of reprisal. We disagree. Ullah’s brief sojourn to Islamabad—where he never left the house— doesn’t rebut the presumption that a notorious terrorist organization continues to imperil his life. Since the record would compel any reasonable adjudicator to conclude Ullah faces a well-founded threat of future persecution, we grant Ullah’s petition for review, reverse the Board’s denial of Ullah’s preserved claims, and remand with instructions that the agency grant relief.”

[Hats way off to superlitigator Ben Winograd!  Listen to the oral argument here.]

pastedGraphic.png

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Tamara Jezic ESQUIRE Jezic & Moyse Fairfax, VA PHOTO: J&M

2.  “Legacy” Arlington Immigration Court superstar Tamara Jezic runs circles around EOIR and OIL!

Dan Kowalski @ LexisNexis reports:

Multiple Failures Trigger Remand to BIA: Chen v. Garland

https://www.ca4.uscourts.gov/opinions/211371.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/multiple-failures-trigger-remand-to-bia-chen-v-garland

“Petitioner Zuowei Chen is a native of China admitted to the United States on a student visa in 2009. Chen now seeks review of a Board of Immigration Appeals order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. If removed to China, Chen fears, he will be persecuted and tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him because of his Christian beliefs and practices. We find there are aspects of the agency’s decision that require clarification before we can meaningfully review Chen’s claims. Accordingly, we vacate the decision of the Board of Immigration Appeals and remand for further explanation, consistent with this opinion.”

[Hats off to Tamara Jezic!  https://jezicfirm.com/attorneys/tamara-jezic/ Listen to the oral argument here.]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Notably, and refreshingly, in Ullah, the 4th Circuit took the unusual step of directing the BIA to grant asylum, rather than just remanding for the BIA to screw it up again! In Chen, Trump appointee Circuit Judge Marvin Quattlebaum was part of the unanimous panel! Condemnation of EOIR’s deficient performance is uniting Article III jurists across ideological lines!

The GOP is “out for Garland’s scalp” for all the WRONG reasons! It’s actually Dems who should be demanding an accounting for his inexcusable, miserable, democracy-eroding (non)performance at EOIR!

Garland’s mess at EOIR isn’t “theoretical,” “academic,” or “speculative!” It’s ACTUALLY endangering lives, eroding democracy, and creating unnecessary chaos on a daily basis! His intransigence is also diverting HUGE amounts of resources that could be used to DEFEND American democracy, rather than seeking to hold a tone-deaf Dem Administration accountable!

In the meantime, Dems are fecklessly moaning and groaning about a lawless and ethics-free Supremes. Yet, a Dem Administration is operating a huge, nationwide “court” system presenting these same problems, in spades!♠️

And, the victims of EOIR’s substandard judging are overwhelmingly people of color, literally fighting for their lives in a dysfunctional system that the Biden Administration is unwilling and/or unable to fix. In these cases, the victims were fortunate enough to be represented by two of the “best in the business,” Ben Winograd and Tamara Jezic. But, too many others face this biased and unfair system unrepresented, a situation that Garland not only has failed to remedy, but has made worse in some ways.  What “message, does this send, particularly to the younger cohort of “social justice” voters whom the Dems are counting on for the future?

Trial By Ordeal
Following the 2020 election, human rights advocates and experts expected and deserved dramatic, long overdue progressive improvements in justice at EOIR. Instead, Garland inexplicably has retained many of the most regressive features of injustice at EOIR, developed and reinforced during the Trump years. Frustration abounds, while justice for the most vulnerable among us suffers under a Dem Administration! Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

How bad is EOIR under Garland? One informed observer put it this way:

BIA staff attorneys are rewarded for the number of signed decisions per month. With the present make-up of the Board, their only incentive is to crank out denials.

Dems love to talk about “change!” The GOP actually achieves it, even though the results are overwhelmingly negative, regressive, and existentially damaging to democracy! Something’s got to give here!

🇺🇸 Due Process Forever!

PWS

07-08-23

🗽⚖️🇺🇸UYGHUR ACTIVIST SAVED BY GW IMMIGRATION CLINIC!  

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera

Please join me and Professor Vera in congratulating Immigration Clinic client, T-Y-, from China, and his student-attorneys, Gisela Camba, Esder Chong, Jordan Nelson, Tessa Pulaski, and Julia Yang. The client’s asylum application was filed on April 6, 2018, his interview at the Asylum Office was on November 8, 2021, and he was granted asylum on May 17, 2022. We received the decision today. The above-captioned is what T-Y- said upon learning about his asylum grant.

T-Y- is a Muslim Uyghur, an ethnic and religious minority in China. Due to his decades-long work as an Uyghur activist, he was persecuted by the Chinese government. T-Y- was falsely imprisoned, sentenced to a ‘re-education camp’, physically and psychologically tortured, and had his movements restricted and monitored. Despite everything he has endured, T-Y- continues his Uyghur advocacy work from within the United States and has even consulted with U.S. politicians and government agencies about the treatment of Uyghurs in China.

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

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Congratulations! Another job REALLY well done by Professors Benitez and Vera and their band of NDPA recruits at GW Law.

As Jason “The Asylumist” Dzubow says, lots of winnable cases out there if folks can get well-qualified representation and actually reach a merits determination before the Asylum Office or EOIR — no mean feat in such a backlogged system!

That raises the point of why wouldn’t a clearly well-prepared and grantable Uyghur case like this one be moved to the “front of the line” for expedited processing instead of sitting around for more than four years?

For years, both USCIS and EOIR have been “expediting” the wrong cases (known as “Aimless Docket Reshuffling”) in an ill-advised and failed attempt to use the legal asylum system as a “deterrent” by maximizing and prioritizing “anticipated denials.” Instead, they should be putting protection and excellence in preparation and advocacy first. It would actually free up more representation resources if advocates weren’t forced to “babysit” “ready for prime time” cases for years! 

During that time, records must be constantly updated, memories fade, and witnesses can become unavailable. Attorneys on both sides move on. Judges retire. There are all sorts of “below the radar screen” costs to creating and maintaining a huge backlog. Unfortunately, it promotes the “refugee roulette” image of what is supposed to be a fair, expert, timely system (but isn’t).

In addition, many of the “haste makes waste” attempts to cut corners by prejudging and denying certain cases, or creating “defective in absentias” end up being reopened or remanded because of sloppy, substandard work.  

What is the Government’s “vision” of how this system can be made to work in a fair and timely manner for all concerned?

🇺🇸Due Process Forever!

PWS

05-25-22

SENSELESS TRAGEDY: PROMINENT NY LAWYER & FEARLESS CHINA PRO-DEMOCRACY ADVOCATE JIM LI SLAIN IN OFFICE! — Disgruntled Client Arrested! — Jim Was UW Law Grad & Packer Fan

Jim Li
Jim Li, ESQUIRE
1955-2022
Human Rights Advocate
PHOTO: Jim Li & Associates

https://www.nytimes.com/2022/03/15/nyregion/jim-li-stabbing-death.html?action=click&algo=bandit-all-surfaces-time-cutoff-30_impression_cut_3_filter_new_arm_5_1&alpha=0.05&block=more_in_recirc&fellback=false&imp_id=175777447&impression_id=a3511a81-a4b5-11ec-aa2e-ab56a298a7a3&index=1&pgtype=Article&pool=more_in_pools/newyork&region=footer&req_id=757398693&surface=eos-more-in&variant=0_bandit-all-surfaces-time-cutoff-30_impression_cut_3_filter_new_arm_5_1

Jonah E. Bromwich reports for NY Times:

. . . .

Mr. Li was born on Sept. 7, 1955, in Wuhan and joined the Chinese Army at the age of 15, said his friend Mr. Zhu. He then worked as a policeman and studied at a university in Wuhan, where he focused on law. He majored in constitutional law at Beijing University, graduating in 1985. After working as a professor in Wuhan, he returned to Beijing for his doctorate, where he had a high place in the student government.

“Usually people at that level means they have a very bright future with the government and with the party,” said Jianzhong Gu, a longtime friend of Mr. Li’s. “But Jim Li was not working in that way. He had his own ideas.”

Mr. Li was a doctoral student in 1989 when the Tiananmen Square protests began with thousands demonstrating against the Chinese Communist Party, criticizing corruption and calling for democratic freedoms. He served as a legal adviser to the Beijing Workers Autonomous Federation, the key organization of workers that aligned itself with the students seeking freedom.

He was interrogated a number of times while detained at Qincheng Prison, but told friends and colleagues that he had never cooperated.

In the United States, after his studies at Columbia, he initially struggled, telling a newspaper at the time that he was unable to find work in a law firm because of his shaky English. He considered working in a restaurant.

But soon afterward, he was able to attend the law school at the University of Wisconsin, where he became a fan of the Green Bay Packers.

In New York, he helped clients gain admission to the United States and devoted himself to pro-democracy programs, his friends said. He was one of the lawyers who represented Zhou Yongjun, a student leader in the Tiananmen Square movement who was detained by the Chinese authorities in 2008 and charged with fraud. He fought against the Chinese government’s practice of using Interpol red notices to apprehend political opponents. And he worked with many clients, including Ms. Zhang, pro bono, Mr. Zhu and Mr. Lebenger said.

“He helped a lot of Chinese people who had the experience of being persecuted by the Chinese government,” Mr. Gu said.

Mr. Lebenger said that Mr. Li had hoped to do less legal work so he could devote more time to his pro-democracy activities, to reading, writing and activism. “If I did anything worthwhile, it was freeing Jim up to do more of that work,” he said.

Kirsten Noyes contributed research.

Jonah E. Bromwich covers criminal justice in New York, with a focus on the Manhattan district attorney’s office, state criminal courts in Manhattan and New York City’s jails.

During his time on Metro, Mr. Bromwich has covered investigations into former president Donald J. Trump and his family business, the fall of New York Governor Andrew M. Cuomo and the crisis at the jail complex on Rikers Island, among other topics. @jonesieman

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What a senseless tragedy! A life well and courageously lived cut short! Rest In Peace, Jim. You will be missed, but your legacy of courage, compassion, and standing up for the human rights of others will live on and continue to inspire the NDPA!

🇺🇸Due Process Forever!

PWS

03-16-21

👎🏽GARLAND’S BIA BLOWS ANOTHER: “Divide and conquer is a good military strategy but a bad judicial one. Judges must consider how related facts weave together into a narrative,” Says 3rd Circuit In Cha Lang v. Att’y Gen.

 

https://www2.ca3.uscourts.gov/opinarch/203353p.pdf

Key quote from opinion by Circuit Judge Bibas:

Divide and conquer is a good military strategy but a bad judicial one. Judges must consider how related facts weave to- gether into a narrative.

Chinese officials caught Cha Liang practicing his faith, so they beat, jailed, and then threatened him. When he sought asy- lum, the Board of Immigration Appeals minimized the threats and physical abuse as discrete incidents. But Liang’s twenty- minute beating and fifteen days in jail made the later threats more menacing. Because the Board should not have ignored this context, we will grant the petition and remand.

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  • Perhaps unwittingly, Judge Bibas’s use of a military analogy for EOIR “judging” is very, very apt! After four years of corrupt, White Nationalist, Stephen Miller inspired “leadership” and “judicial selections,” far, far too many judges and others at today’s EOIR view immigrants and their attorneys as “the enemy.” By contrast, they think of their “partners” at DHS as their “comrades in arms” against Stephen Miller’s fabricated “alien invasion” — a euphemism for “replacement theory” and other racist tropes that were seldom far below the surface of Trump-era immigration policies and actions.
  • It’s tempting to blame this entire mess on theTrump regime. But, sadly, manifestations of this problem were present well before 2017.
  • I remember an Immigration Judge Conference where, strangely, a recently appointed IJ, a former government prosecutor, was given an “instructor slot” at small group training. This Judge proceeded to repeatedly refer to the the DHS as “we” and the respondents and their lawyers as “them” as he enthusiastically described Government litigation “victories” while ignoring or downplaying Circuit Court decisions that had found serious flaws in EOIR judging and DHS legal positions.
  • That individual went on to a “judicial career” at EOIR that consistently demonstrated a disturbing and inappropriate inability to view those humans coming before the Immigration Court and their lawyers as anything other than “the enemy!”  So, the ethical, cultural, and quality control problems at EOIR are very deep-seated.
  • Remember, this is a broken agency that once, but no more, was supposed to stand for “through teamwork and innovation, become the world’s best administrative tribunals guaranteeing fairness and due process for all.”
  • As the recent “John Gruden Episode” in the NFL shows, “corrosive culture” remains a huge problem in professional football. Similarly, EOIR’s “culture of denial with a heavily dose of racism, misogyny, and xenophobia” remains every bit as much of a problem as those plaguing the NFL. Disingenuously “minimizing threats” to asylum seekers, as in this case, is “business as usual” at Garland’s anti-immigrant, anti-asylum EOIR. 
  • While the response of the NFL’s leadership has obviously been not fully effective, it’s still much better than Garland’s “what me worry, hear nothing, see nothing” approach to the crippling problems at his dysfunctional EOIR.

    Alfred E. Neumann
    Garland’s inept approach to the ongoing due process disaster at his EOIR has been perplexing, to say the least!
    PHOTO: Wikipedia Commons
  • Gruden actually was promptly forced out when the full extent of his misconduct finally surfaced. By contrast, with overwhelming public evidence of systemic failure, Garland has catastrophically failed to replace the problematic judges and inept senior leaders at EOIR with better-qualified, progressive, practical scholar-expert judges unswervingly committed to due process, fundamental fairness, and equal justice!
  • Although not cited by the 3rd Circuit, the BIA and the IJ also ignored the leading BIA precedent of Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998) (Panel: Hurwitz, Rosenberg, Schmidt) on the importance of considering harm cumulatively.
  • The concurring opinion by Judges Jordan and Ambro on past persecution as a “mixed question of fact and law” subject to a “two-step review process” is also well worth a read, particularly for those practicing in the 3rd Cir.

 

🇺🇸Due Process Forever!

PWS

10-13-21

ASIAN AMERICANS FEEL THE STING OF TRUMP’S  RACISM — THEY ARE FIGHTING BACK AGAINST THE GOP’S CAMPAIGN OF HATE AND STUPIDITY — Once Targeted By The “Chinese Exclusion Act” & The “Asia-Pacific Barred Zone,” Later Dubbed The “Model Minority” By White Racists, Asian Americans Are Bonding With Other Targets Of Trump’s Program Of Dehumanization To Resist Racism in America: “The current protests have further confirmed my role and responsibility here in the U.S.: not to be a ‘model minority’ aspiring to be white-adjacent on a social spectrum carefully engineered to serve the white and privileged, but to be an active member of a distinct community that emerged from the tireless resistance of people of color who came before us.”

https://apple.news/AtFy-2-s8SviGlrVZK5m0ag

From Time:

‘I Will Not Stand Silent.’ 10 Asian Americans Reflect on Racism During the Pandemic and the Need for Equality

SANGSUK SYLVIA KANG

ANNA PURNA KAMBHAMPATY

Diseases and outbreaks have long been used to rationalize xenophobia: HIV was blamed on Haitian Americans, the 1918 influenza pandemic on German Americans, the swine flu in 2009 on Mexican Americans. The racist belief that Asians carry disease goes back centuries. In the 1800s, out of fear that Chinese workers were taking jobs that could be held by white workers, white labor unions argued for an immigration ban by claiming that “Chinese” disease strains were more harmful than those carried by white people.

Today, as the U.S. struggles to combat a global pandemic that has taken the lives of more than 120,000 Americans and put millions out of work, President Donald Trump, who has referred to COVID-19 as the “Chinese virus” and more recently the “kung flu,” has helped normalize anti-Asian xenophobia, stoking public hysteria and racist attacks. And now, as in the past, it’s not just Chinese Americans receiving the hatred. Racist aggressors don’t distinguish between different ethnic subgroups—anyone who is Asian or perceived to be Asian at all can be a victim. Even wearing a face mask, an act associated with Asians before it was recommended in the U.S., could be enough to provoke an attack.

Since mid-March, STOP AAPI HATE, an incident-reporting center founded by the Asian Pacific Policy and Planning Council, has received more than 1,800 reports of pandemic-fueled harassment or violence in 45 states and Washington, D.C. “It’s not just the incidents themselves, but the inner turmoil they cause,” says Haruka Sakaguchi, a Brooklyn-based photographer who immigrated to the U.S. from Japan when she was 3 months old.

Since May, Sakaguchi has been photographing individuals in New York City who have faced this type of racist aggression. The resulting portraits, which were taken over FaceTime, have been lain atop the sites, also photographed by Sakaguchi, where the individuals were harassed or assaulted. “We are often highly, highly encouraged not to speak about these issues and try to look at the larger picture. Especially as immigrants and the children of immigrants, as long as we are able to build a livelihood of any kind, that’s considered a good existence,” says Sakaguchi, who hopes her images inspire people to at least acknowledge their experiences.

Amid the current Black Lives Matter protests, Asian Americans have been grappling with the -anti-Blackness in their own communities, how the racism they experience fits into the larger landscape and how they can be better allies for everyone.

“Cross-racial solidarity has long been woven into the fabric of resistance movements in the U.S.,” says Sakaguchi, referencing Frederick Douglass’ 1869 speech advocating for Chinese immigration and noting that the civil rights movement helped all people of color. “The current protests have further confirmed my role and responsibility here in the U.S.: not to be a ‘model minority’ aspiring to be white-adjacent on a social spectrum carefully engineered to serve the white and privileged, but to be an active member of a distinct community that emerged from the tireless resistance of people of color who came before us.”

Justin Tsui

“I didn’t think that if he shoved me into the tracks I’d have the physical energy to crawl back up,” says Tsui, a registered nurse pursuing a doctorate of nursing practice in psychiatric mental health at Columbia University. Tsui was transferring trains on his way home after picking up N95 masks when he was approached by a man on the platform.

The man asked, “You’re Chinese, right?” Tsui responded that he was Chinese American, and the man told Tsui he should go back to his country, citing the 2003 SARS outbreak as another example of “all these sicknesses” spread by “chinks.” The man kept coming closer and closer to Tsui, who was forced to step toward the edge of the platform.

“Leave him alone. Can’t you see he’s a nurse? That he’s wearing scrubs?” said a bystander, who Tsui says appeared to be Latino. After the bystander threatened to re­cord the incident and call the police, the aggressor said that he should “go back to [his] country too.”

When the train finally arrived, the aggressor sat right across from Tsui and glared at him the entire ride, mouthing, “I’m watching you.” Throughout the ride, Tsui debated whether he should get off the train to escape but feared the man would follow him without anyone else to bear witness to what might happen.

Tsui says the current anti­racism movements are important, but the U.S. has a long way to go to achieve true equality. “One thing’s for sure, it’s definitely not an overnight thing—I am skeptical that people can be suddenly woke after reading a few books off the recommended book lists,” he says.“Let’s be honest, before George Floyd, Breonna Taylor and Ahmaud Arbery, there were many more. Black people have been calling out in pain and calling for help for a very long time.”

. . . .

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Read the other nine profiles and see Haruka Sakaguchi’s great photography at the link.

Racism, hate, cruelty, ignorance, dehumanization, inequality, and incompetence are the planks of Trump’s re-election “platform.”

This November, vote like your life depends on it! Because it does!

PWS

06-28-20

A PRESIDENCY WITHOUT INTELLIGENCE IS A THREAT TO OUR NATIONAL SECURITY: By Contrast, Individuals Seeking Asylum Through Our Legal System @ Our Southern Border Are No Such Thing — “None of the [U.S. intelligence] officials said there is a security crisis at the U.S.-Mexico border, where Trump has considered declaring a national emergency so that he can build a wall.”

James Hohmann from the “Daily 202” in today’s WashPost:

— Here are five of the main issues where the intelligence community leaders broke with Trump:

  1. Coats “said that North Korea was ‘unlikely to completely give up its nuclear weapons and production capabilities,’ which the country’s leaders consider ‘critical to the regime’s survival.’ That assessment threw cold water on the White House’s more optimistic view that the United States and North Korea will achieve a lasting peace and that the regime will ultimately give up its nuclear weapons.’”

  2. None of the officials said there is a security crisis at the U.S.-Mexico border, where Trump has considered declaring a national emergency so that he can build a wall.”

  3. Officials also warned that the Islamic State was capable of attacking the United States and painted a picture of a still-formidable organization. Trump has declared the group defeated and has said he wants to withdraw U.S. troops from Syria as a result.”

  4. The officials assessed that the government of Iran was not trying to build a nuclear weapon, despite the Trump administration’s persistent claims that the country has been violating the terms of an international agreement forged during the Obama administration. Officials told lawmakers that Iran was in compliance with the agreement.”

  5. Officials also warned, as they did last year, about Russia’s intention to interfere with the U.S. political system. … Trump continues to equivocate on whether Russia interfered in the 2016 election on his behalf, contradicting the unanimous assessment of all the top intelligence officials currently serving.”

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

Here’s a more detailed story by Shane Harris from today’s Post setting forth just how “out to lunch” our “Intelligence professionals,” whom Trump himself appointed, think the President’s “threat assessment” is, specifically including, but not limited to, his “manufactured security crisis” at the Southern Border. https://www.washingtonpost.com/world/national-security/intelligence-officials-will-name-biggest-threats-facing-us-during-senate-hearing/2019/01/28/f08dc5cc-2340-11e9-ad53-824486280311_story.html?utm_term=.5b8041d6dc0a

I’ve been saying on “Courtside” for some time that the real existential threat to our national security is Trump. While the Administration has undoubtedly completely screwed up our asylum system at the border and in the U.S. Immigration Courts that has almost nothing to do with “national security.”

It’s simply a matter of common sense: We know (or should know) almost exactly what the number oF arrivals is going to be, particularly when they travel in slow-moving “caravans” that easily can be tracked and anticipated. We certainly could “funnel” almost all of them into the legal screening system for asylum.

Get the Inspectors and Asylum Officers down there to do the screening, and the necessary Immigration Judges, ICE lawyers, and defense counsel to decide cases of those screened in! Take lower priority cases, most involving long-term residents who have been here and likely will continue to be here for years, off the overcrowded Immigration Court dockets!

This would allow processing of the “new influx” in a timely manner, with full due process, and without creating more “Aimless Docket Reshuffling” in the Immigration Courts. It would also avoid the always ineffective, wasteful, and usually illegal “gimmicks” that the Administration has used to “game” the asylum system against applicants. And, certainly in this respect, getting more pro bono lawyers involved would be a much bigger help than more unneeded troops or Border Patrol Agents.  Let the Border Patrol go back to their job of apprehending those border crossers who aren’t turning themselves in at or near the border to apply for asylum. Stop wasting resources and solve the problem!

Meanwhile, we should all be scared by Trump’s disregard of the prudent advice of his “national security and intelligence team.”

PWS

01-30-19

WONG KIM ARK: The Case Where The Supremes Rebuffed The Racist Attack On Birthright Citizenship!

https://www.huffingtonpost.com/entry/chinese-cook-case-birthright-citizenship_us_5bd9ecf5e4b0da7bfc1689d6

Kimberly Yam reports for HuffPost:

During a time of rampant anti-Chinese sentiment, the Supreme Court ruled anyone born in the U.S. is automatically a citizen.

Wong Kim Ark, a restaurant cook who was born in San Francisco, was barred from reentering the U.S. after a trip to visit his parents in China. Ark was arrested, and his case eventually made it to the Supreme Court, where judges ruled that under the 14th Amendment, anyone born in the U.S. is automatically a citizen.

Though Trump claimed he could sign an executive order to revoke the current birthright citizenship policy, Ark’s case set a precedent that’s remained the law of the land for more than a century. In fact, the policy could likely only be changed through a constitutional amendment.

“The bigger issue for us as a country is how do we create more pathways to citizenship, not whether we should cut it off,” Aarti Kohli, executive director of Advancing Justice ― Asian Law Caucus, told HuffPost. We have a lot of people who already call America home who should have the opportunity to become citizens.

Wong Kim Ark, a cook born in San Francisco, was barred from reentering the U.S. after visiting his parents in China.

DEPARTMENT OF JUSTICE/NATIONAL ARCHIVES
Wong Kim Ark, a cook born in San Francisco, was barred from reentering the U.S. after visiting his parents in China.

Ark’s parents had arrived in the U.S. from China during a time of fierce anti-Chinese sentiment. The era had birthed the Chinese Exclusion Act, legislation that put a 10-year moratorium on Chinese labor immigration. The act also barred courts from granting Chinese immigrants citizenship.

Ark’s parents came to the country seeking U.S. citizenship but eventually left after the act had cut off any pathway to citizenship status. They had also feared the vigilante violence that often targeted Chinese immigrants at the time. In fact, the largest lynching in American history occurred in 1871. Hundreds had descended upon Los Angeles’ Chinatown, and the mob lynched an estimated 17 to 20 Chinese immigrants.

But Ark himself had a life in the United States, and, though he had traveled to China before and had been readmitted into the U.S. without any issues, his 1895 trip presented a host of problems. Authorities ordered the Chinese-American to return to the ship.

Chinese immigrant aid organization Six Companies stepped in to provide Wong legal help. Wong’s lawyer, Thomas D. Riordan, argued that the cook’s reentry into the U.S. was protected under the 14th Amendment. As the case escalated to federal court, immigration hard-liners fought back, claiming Ark’s “accident of birth” didn’t mean citizenship.

In the end, the U.S. Supreme Court ruled in favor of Ark.

“If the Trump administration issued an executive order, it would be immediately challenged in the courts, and judges would likely rely on Wong Kim Ark to find the executive order unconstitutional,” Kohli said.

Many conservatives and even officials appointed by Trump himself disagree with the president’s stance on birthright citizenship.

“The plain meaning of this language is clear,” James Ho, whom Trump appointed as a federal appeals court judge, wrote in 2011 of the 14th Amendment.

Ho, then a solicitor general of Texas, wrote that “a foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey US law.”

House Speaker Paul Ryan (R-Wis.) addressed Trump’s comments, telling a Kentucky radio station earlier this week that “you cannot end birthright citizenship with an executive order” ― to which Trump responded that Ryan “knows nothing about” birthright citizenship.

Kohli pointed out that those who oppose birthright citizenship are in the minority.

“It’s clear that most Americans have embraced birthright citizenship and believe that anyone who is born here should have the right to be a citizen. A few political leaders are trying to further a white supremacist agenda and create a ‘fix’ to a problem that doesn’t exist,” she said.

What’s more, “Many scholars have noted that birthright citizenship has helped the U.S. integrate each new wave of immigrants as their children are recognized as U.S. citizens.”

 

AS SESSIONS DISEMBOWELS DUE PROCESS, THE REAL LEGAL PROBLEMS LEADING TO UNFAIR HEARINGS FOR ASYLUM SEEKERS AND OTHERS CONTINUE UNABATED & UNADDRESSED IN U.S. IMMIGRATION COURT – 2d Cir. Delivers A “Double Shot” Rebuke To Misapplication Of Credibility Rules By Immigration Judges & BIA Judges Who Should Know Better — HONG FEI GAO V. SESSIONS

GAO-2D CIR 16-2262_16-2493_opn

Hong Fei Gao v. Sessions, 2d Cir., May 25, 2018, published

PANEL: WINTER and CHIN, Circuit Judges, and KORMAN, Judge.*

  • Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.

    OPINION BY: JUDGE CHIN

    SUMMARY OF HOLDING (From Decision):

    These petitions for review heard in tandem challenge two decisions of the Board of Immigration Appeals (the ʺBIAʺ), affirming decisions by two Immigration Judges (ʺIJsʺ), denying asylum, withholding of removal, and protection under the Convention Against Torture (ʺCATʺ) to two petitioners seeking relief from religious persecution in China on adverse credibility grounds. During removal proceedings, petitioners testified regarding the medical attention they received for injuries they sustained from police beatings. The IJs and the BIA relied substantially on the omission of that information from petitionersʹ initial applications and supporting documents to determine that petitioners lacked credibility.

    On appeal, petitioners principally challenge the agencyʹs adverse credibility determinations. In light of the totality of the circumstances and in the context of the record as a whole, in each case we conclude that the IJ and BIA erred in substantially relying on certain omissions in the record. Accordingly, we grant the petitions, vacate the decisions of the BIA, and remand the cases to the BIA for further proceedings consistent with this opinion.

     

KEY QUOTE:

For cases filed after May 11, 2005, the effective date of the REAL ID Act, Pub L. No. 109‐13, 119 Stat. 231 (2005), ʺan IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as theʹtotality of the circumstancesʹ establishes that an asylum applicant is not credible,ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The agency may base a credibility finding on an asylum applicantʹs ʺdemeanor, candor, or responsivenessʺ; the ʺinherent plausibilityʺ of his account; the consistency among his written statements, oral statements, and other record evidence; and ʺany inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicantʹs claim, or any other relevant factor.ʺ 8 U.S.C. § 1158(b)(1)(B)(iii). Even where the agency ʺrelies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential.ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)). To resolve the instant appeals, we first clarify the following principles that govern credibility determinations based on omissions following the REAL ID Act.

First, although the REAL ID Act authorizes an IJ to rely on ʺanyinconsistency or omission in making an adverse credibility determination,ʺ even one ʺcollateral or ancillaryʺ to an applicantʹs claims, id. at 167, the Act does not give an IJ free rein. The REAL ID Act does not erase our obligation to assess whether the agency has provided ʺspecific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding.ʺ Id. at 166 (quoting Zhou Yun Zhang, 386 F.3d at 74); accord Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010) (ʺThe REAL ID Act did not strip us of our ability to rely on the institutional tools that we have developed, such as the requirement that an agency provide specific and cogent reasons supporting an adverse credibility determination, to aid our review.ʺ). Thus, although IJs may rely on non‐material omissions and inconsistencies, not all omissions and inconsistencies will deserve the same weight. A trivial inconsistency or omission that has no tendency to suggest a petitioner fabricated his or her claim will not support an adverse credibility determination. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (per curiam) (remanding where we found ʺany potential discrepancies that might exist to be far from ʹsignificant and numerous,ʹ but rather insignificant and trivialʺ); accord Shrestha, 590 F.3d at 1044 (noting thatʺtrivial inconsistencies that under the total circumstances have no bearing on a petitionerʹs veracity should not form the basis of an adverse credibility determinationʺ); Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (faulting IJ forʺfail[ing] to distinguish between material lies, on the one hand, and innocent mistakes, trivial inconsistencies, and harmless exaggerations, on the other handʺ).3

Second, although ʺ[a] lacuna in an applicantʹs testimony or omission in a document submitted to corroborate the applicantʹs testimony . . . can serve as a proper basis for an adverse credibility determination,ʺ Xiu Xia Lin, 534 F.3d at 166 n.3, we also recognize that ʺasylum applicants are not required to list every incident of persecution on their I–589 statement,ʺ Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (per curiam) (quoting Pavlova, 441 F.3d at 90); see also Secaida‐Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (noting that an applicantʹsʺfailure to list in his or her initial application facts that emerge later in testimony will not automatically provide a sufficient basis for an adverse credibility findingʺ), superseded by statute on other grounds as recognized in Xiu Xia Lin, 534 F.3d at 167; accord Pop v. INS, 270 F.3d 527, 531‐32 (7th Cir. 2001) (ʺWe hesitate to find that one seeking asylum must state in his or her application every incident of persecution lest the applicant have his or her credibility questioned if the incident is later elicited in direct testimony.ʺ); Abulashvili v. Attorney Gen. of U.S., 663 F.3d 197, 206 (3d Cir. 2011). Because of this tension, although we have noted in dictum that an inconsistency and an omission are ʺfunctionally equivalentʺ for adverse credibility purposes, Xiu Xia Lin, 534 F.3d at 166 n.3, in generalʺomissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony,ʺ Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014). Cf. Lianping Li, 839 F.3d at 150 (upholding adverse credibility determination where petitionerʹs ʺasylum application did not simply omit incidents of persecution. . . . [but rather] described the same incidents of persecution differentlyʺ).

An example of a trivial inconsistency that is entitled to little if any weight is the difference between Gaoʹs hearing testimony that he was interrogated by the police ʺfour timesʺ and his application statement that he was interrogated ʺseveral times.ʺ The BIA correctly held that this ʺdiscrepancyʺ did not support an adverse credibility determination. Likewise, the difference between September 1, 2010 and September 4, 2010 as the date when Shao contacted his cousin is a trivial discrepancy.

Although the federal evidentiary rules do not apply in immigration proceedings, Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam), it is nonetheless instructive to analogize the use of omissions in adverse credibility determinations to the use of a witnessʹs prior silence for impeachment. In the latter context, we have indicated that ʺ[w]here the belatedly recollected facts merely augment that which was originally described, the prior silence is often simply too ambiguous to have any probative force, and accordingly is not sufficiently inconsistent to be admitted for purposes of impeachment.ʺ United States v. Leonardi, 623 F.2d 746, 756 (2d Cir. 1980) (citation omitted). In addition, the probative value of a witnessʹs prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose. See Jenkins v. Anderson, 447 U.S. 231, 239 (1980) (ʺCommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.ʺ(emphasis added)). In the immigration context, in assessing the probative value of the omission of certain facts, an IJ should consider whether those facts are ones that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances.

Finally, the REAL ID Act requires IJs to evaluate each inconsistency or omission in light of the ʺtotality of the circumstances, and all relevant factors,ʺ8 U.S.C. § 1158(b)(1)(B)(iii). That requirement is consistent with our well‐established rule that review of an agencyʹs adverse credibility determination ʺis conducted on the record as a whole.ʺ Tu Lin, 446 F.3d at 402; see also Xiu Xia Lin, 534 F.3d at 167 (an applicantʹs testimony must be considered ʺin light of . . . the manner in which it hangs together with other evidenceʺ (citation omitted)); accord Shrestha, 590 F.3d at 1040 (ʺ[T]he totality of the circumstances approach also imposes the requirement that an IJ not cherry pick solely facts favoring an adverse credibility determination while ignoring facts that undermine that result.ʺ). Thus, ʺan applicantʹs testimonial discrepancies ‐‐ and, at times, even outright lies ‐‐ must be weighed in light of their significance to the total context of his or her claim of persecution.ʺ Zhong v. U.S. Depʹt of Justice, 480 F.3d 104, 127 (2d Cir. 2007). An IJ must also ʺʹengage or evaluateʹ an asylum applicantʹs explanations for apparent inconsistencies in the record.ʺ Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir. 2006) (quoting Latifi, 430 F.3d at 105); see also Cao He Lin v. U.S. Depʹt of Justice, 428 F.3d 391, 403 (2d Cir. 2005) (ʺAbsent a reasoned evaluation of [petitionerʹs] explanations, the IJʹs conclusion that his story is implausible was based on flawed reasoning and, therefore, cannot constitute substantial evidence supporting her conclusion.ʺ).

II. Application
In light of the foregoing principles, we conclude that in both cases, the IJs and the BIA erred by substantially relying on certain inconsistencies and omissions that had no tendency to show that petitioners fabricated their claims when considered in light of the totality of the circumstances and in the context of the record as a whole. Because we cannot confidently predict that the IJs would have adhered to their adverse credibility determinations absent these erroneous bases, we remand for further evaluation.

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

So, while Jeff Sessions is busy with a “nuclear attack” on asylum law and Constitutional Due Process, some U.S. Immigration Judges and BIA Appellate Immigration Judges are equally busy just mis-applying well-established legal standards to screw asylum seekers.

Rather than looking at the record as a whole, as required by law, and giving asylum seekers the “benefit of the doubt,” too many Immigration Judges and BIA Judges are playing “gotcha” with the law — using minor or irrelevant variances in testimony or minor gaps in proof to justify bogus adverse credibility findings and asylum denials. Obviously, as backlogs stretch out, the problems inherent in “fly-specking” an applicant’s testimony about events many years in the past increases. That’s one of the reasons why Sessions’s insane bid to shove more properly administratively closed removal cases back onto “active dockets,” and to discourage the further removal of “low priority” cases from active dockets, is totally and intentionally destructive to an already failing court system.

The REAL ID ACT was effective in 2005, well over a decade ago. So, its proper application is not “rocket science.” It’s “Immigration Judging 101.”

Yet unfair applications of the law to wrongfully discredit and deny asylum seekers persists in the Immigration Courts and seems to breeze through at least some BIA “Panels” without critical review or analysis. I put “Panels” in quotes because all too often these days the appellate review is conducted by a “Panel of One” judge.

And since the BIA Appellate Immigration Judges now come almost exclusively from Government backgrounds, they are very likely to share some of the same “blind spots” as to the reality of presenting an affirmative asylum application in Immigration Court. If any of them have done it (and most haven’t), it was decades ago when conditions and the law were very different. They all too often draw inferences and reach conclusions that any competent immigration practitioner would know are way out of line with reality.

How are these endemic problems affecting fairness and Constitutional Due Process in the Immigration Courts, and potentially destroying and endangering lives of asylum applicants, solved by cranking up judicial productivity, trying to reverse long-standing precedents that aid asylum seekers pursuing legal protections, and making biased public anti-asylum statements? How is justice and Due Process served by gratuitously attacking immigration lawyers and disingenuously seeking to eliminate laws that provide the already meager and inadequate protections that asylum seekers now have? Yet this is precisely what Sessions’s program is!

The Immigration Court system needs reform to guarantee unbiased, high quality, fair treatment of asylum seekers and other individuals fighting for their very lives. Jeff Sessions is dedicated to the eradication of Due Process and turning the Immigration Courts into a “Death Railroad” for asylum seekers and other migrants. He must be stopped before he destroys our entire U.S. justice system — apparently his ultimate aim.

Join the New Due Process Army and stand up to Jeff Sessions and the other bullying, scofflaw, White Nationalists in the Trump Regime.

PWS

06-01-18

 

“GOOD ENOUGH FOR GOVERNMENT WORK” – 2d CIR. GIVES “CHEVRON DEFERENCE” TO BIA’S Matter of L-A-C-, 26 I. & N. Dec. 516 (B.I.A. 2015) – Migrants Have No Right to Advance Notice Of Required Corroboration! – Wei Sun v. Sessions

CA2-WeiSunvSessions

Wei Sun v. Sessions, 2d Cir., 02-23-18, published

PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.

OPINION BY: Judge Chin

KEY QUOTE/SUMMARY:

Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.

The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.

ANOTHER KEY QUOTE:

Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).

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

So, here’s what Chevron really says:

“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”

But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.” 

And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.

Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made.  Seems like a combination of fundamental fairness and common sense.

There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.

Here’s my previous post on Justice Gorsuch and Chevron:

https://wp.me/p8eeJm-eT

PWS

02-25-18

INTERNATIONAL RESCUE COMMITTEE: US ADMINISTRATION OF SHAME: “A year of unwelcome How the Trump administration has sabotaged America’s welcome in 2017”

https://www.rescue.org/article/how-trump-administration-has-sabotaged-americas-welcome-2017

“Since President Donald Trump took office on Jan. 20, his administration has repeatedly implemented policies that pull the welcome mat from under the feet of refugees and immigrants seeking safety in the United States. The latest directive, announced in late October, institutes new vetting measures for refugees from 11 countries, effectively extending the travel ban that recently expired.

These developments are unbefitting America’s history as a safe haven for refugees. Democratic and Republican presidents alike have ensured that the United States supports refugees who seek liberty and reject ideologies opposed to American values.
U.S. leadership is needed now more than ever, when tens of millions across the globe face life-threatening situations. Yet the Trump administration continues to issue anti-immigrant and anti-refugee policies that endanger innocent people fleeing persecution and, inherently, weaken America’s reputation both at home and abroad.
Here is a timeline of the Trump administration’s immigrant policies during its first nine months.
Travel ban
By the numbers
President Trump is pulling back America’s welcome mat at a time of unprecedented global need. This year:
65 million
people worldwide are currently uprooted by crisis

More people have been forced to flee their homes by conflict and crisis than at any time since World War II.

Learn more about refugees
During his first week in office, President Trump instituted a travel ban that suspended the U.S. refugee resettlement program for 120 days and barred Syrian refugees from entry to the U.S. indefinitely. It also indiscriminately excluded any travel from six other countries—Iraq, Iran, Sudan, Libya, Somalia and Yemen—for 90 days.
Opponents of the travel ban challenged the directive in the courts. The Administration drafted a second travel ban as replacement: It allowed travelers who hold green cards entry the U.S.; removed Iraq from the list of restricted countries; and struck down the indefinite ban on Syrian refugees.
Even with this second ban, an eventual Supreme Court ruling required the administration to rewrite its travel guidelines over the summer, stipulating that people who have a “credible claim of bona fide relationship” with a person living in the U.S. can enter the country. The new guidelines, however, raised more questions than answers. For example, “bona fide relationships” didn’t include grandparents or resettlement agencies until advocates further challenged the protocols. Meanwhile, thousands of vulnerable refugees who were not already on flights to the U.S. were left stranded.
“The human toll on families who have patiently waited their turn, done the vetting, given up jobs and prepared to travel is wrong,” said David Miliband, president of the International Rescue Committee (IRC), in a July 13 statement. “After decades of leading with its gold standard resettlement program, this defective policy shifts the goal posts and sees America turn its back on—and break its promise to—the world’s most vulnerable.”
The Supreme Court scheduled hearings on the legality of the travel ban, but the expiration date for the directive rendering the case moot.
End of protections for Central American refugee children
On Aug. 16, the Trump administration ended the automatic parole option for children in the CAM program (formally called the Central American Minors Refugee and Parole program). Since December 2014, the CAM program has helped reunite children fleeing gang violence in Guatemala, Honduras and El Salvador with parents already in the U.S.
Many of these children avoided a perilous journey in order to reunite with parents and relatives—who are lawfully in the U.S.—and begin their new lives with refugee status protected under U.S. and international laws, notes Jennifer Sime, senior vice president of United States Programs at the IRC. “These children are no longer separated from their parents due to conflict and unrest, and are able to attend school and have a childhood free from violence.”
Terminating this lifesaving program, as this administration has done, is brutally tearing families apart—and in many cases, endangering children.
End of the “Dreamers” program
By the numbers
President Trump is pulling back America’s welcome mat at a time of unprecedented global need. This year:
45,000
is the record-low U.S. limit on refugee admissions

That number is less than half the refugee admissions cap set by President Obama last year.

Why the U.S. should accept more refugees
On Sept. 5, Trump ended the Deferred Action for Childhood Arrivals (“DACA”) program, which created a fair and necessary safeguard for hundreds of thousands of young people—commonly known as Dreamers—brought to the U.S. as children.
This decision puts nearly 800,000 young people at risk of deportation from the only country they have ever known. It will have a painful and lasting impact on their lives, the fortunes of their employers, and the wellbeing of their communities.
“The devastating decision to discontinue DACA … unnecessarily tears families apart,” says Hans van de Weerd, vice president of United States Programs at the IRC. “To take away the promised protection of DACA without an alternative, from those who courageously came out of the shadows to apply to the program, bolster our economy and enrich our communities, is simply inhumane.”

Historically low refugee cap
On Sept. 27, the Trump administration announced that it would cap at 45,000 the number of refugees granted admission to the U.S. in Fiscal Year 2018. This number is a historic low—the annual cap on average has exceeded 95,000 since 1980—and comes at a time when more people are uprooted by war and crisis than ever before.
“This administration’s decision to halve the number of refugees admitted to America is a double-blow—to victims of war ready to start a new life, and to America’s reputation as a beacon of hope in the world,” says Miliband. “When America cuts its numbers, the danger is that it sets the stage for other nations to follow suit, a tragic and contagious example of moral failure.”
New vetting procedures
By the numbers
President Trump is pulling back America’s welcome mat at a time of unprecedented global need. This year:
15,000
refugees are actually likely to be admitted to the U.S., based on IRC projections

Vulnerable refugees are being harmed by bureaucratic red tape that won’t make Americans safer.

Why the existing vetting process already works
The travel ban officially expired on Oct. 24, but the Trump administration substituted the directive with a round of new vetting procedures for refugees entering the U.S. All refugees will now need to provide addresses, phone numbers, email addresses and other details – over the past decade – for themselves and, potentially, their extended family members.
Further measures essentially allow Trump to extend the ban for 90 days for refugees from 11 countries.
“This will add months, or potentially years, to the most urgent cases, the majority of which are women and children in heinous circumstances,” says Sime. “With a world facing brutal and protracted conflicts like in Syria, or new levels of displacement and unimaginable violence against the Rohingya, this moment is a test of the world’s humanity, moral leadership, and ability to learn from the horrors of the past.”
Stand with refugees

We need your help to fight back and remind Congress that the Trump administration’s refugee policies DO NOT represent American values.”

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

More for Fat Cats, corporations, and the Trump Family Enterprises. Less for the needy and vulnerable. Eventually, there will be a reckoning for selfish, “me first,” policies of greed and disregard for the rights and humanity of others. I read it in a book.

PWS

12-02-17

 

 

 

9TH CIR: BIA BOBBLES ROUTINE CREDIBILITY DETERMINATION – FAILS TO APPLY “TOTALITY OF CIRCUMSTANCES” — HUINAN LIN v. SESSIONS

9TH CIR Lin v. Sessions, 9th, Credibility

Huinan Lin v. Sessions, 9th Cir., 01-26-17, unpublished

PANEL: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

OPINION: PER CURIAM

KEY QUOTE:

“Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for assuming Bao’s account was fabricated and her husband Zheng’s was the correct account of facts). The IJ found that nothing in Lin’s demeanor detracted from her credibility, yet rejected all of Lin’s explanations, even when she stood by her own version of events. We conclude that the overall reliance on Cao’s asylum application and prior testimony was arbitrary.

As Lin argues, the totality of the circumstances compel that she should be deemed credible. Because neither the BIA nor the IJ made an adverse credibility

3

finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to have the abortion performed. Qin Lin stated that she took care of Lin two days after the abortion while she was crying, pale, and weak. See Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore evidence that corroborates the alien’s claim). The 1999 Country Conditions Report notes that forced abortions and sterilizations occurred despite China’s official policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the evidence in her case, Lin provided documentation from Jiangjing Town Hospital showing that she had an abortion on December 27, 2000. Lin also provided a notice addressed to her to report for IUD and pregnancy checks from the Cangxi Village Committee. The notice stated that if she did not report to the Family Planning Office, she “will be punished pursuant to relevant Family Planning Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in Hawaii showed that Respondent’s second IUD was removed on September 15, 2008. The Government did not object to the submission of these copies and there was nothing in the record to “support a finding that the documents [were] not credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding

4

documentary support credible where “there was no opposition to the introduction or challenge to the authenticity of these documents by the INS,” even where the IJ found the documents unbelievable). Because the documentation and Qin Lin’s testimony are credible, they corroborate her past persecution claim, i.e., that she had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at 1040–41.

After a reversal of an adverse credibility determination, “[w]e must now decide whether we determine eligibility for asylum and withholding of removal or whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As set forth above, this Court finds credible Lin’s claim that she was forced to abort her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the totality of circumstances, there is no “reasonable prospect from the administrative record that there may be additional reasons upon which the IJ or BIA could rely” to find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009).

In sum, we grant the petition in part and hold that Lin is entitled to withholding of removal as a matter of law. In addition, since Lin is statutorily

5

eligible for asylum, we remand to the BIA so that the Attorney General may exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489 F.3d. at 992. We deny the petition in part as to the due process violation claim and challenge to the IJ’s finding of fear of future persecution.”

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You can read the full opinion at the link. Unfortunately, as with many Circuit Court opinions these days, it is “unpublished.” But, it is very instructive.

Yes, as a former BIA Chair and Appellate Judge, I “get it” that the BIA has lots of cases and nobody’s perfect. Certainly, I made my share of mistakes in my career. But, as I have noted before, these are hardly “major questions of law” on which divergence of opinion between the BIA and the Circuit Courts is understandable.

No, they are “failures of mechanics” — failure to correctly apply the everyday rules that Immigration Judges are supposed to be following in Immigration Courts across the country. And, although the legal issues might not be profound, the effects of such mistakes have a profound adverse effect on individuals’ lives.

This respondent was entitled to mandatory protection that the BIA was perfectly ready to ignore had the respondent not had the good fortune to have a persistent attorney to help her perfect an appeal to the Ninth Circuit. Many respondents in this system, however, do not have the good fortune to be so competently represented at their trial level and have no chance of winning an appeal without attorney assistance.

All of this points to the logical conclusion that the U.S. Immigration Courts, at both the trial and appellate levels are already running at “warp speed” where serious mistakes in the application of routine rules and precedents are all too common. To suggest, as Jeff “Gonzo Apocalyto” Sessions has, that the solution is to make the system go even faster, impose “production quotas,” and restrict the already limited rights of the individuals seeking justice from this system is totally absurd! Yet, he’s getting aways with it, at least so far.

We need an independent Article I U.S. Immigration Court where quality, fairness, Due Process, and “getting it right” are the driving considerations. Until we get such a court, we will be falling short of our Constitutional obligation to provide fair and impartial decisions to those coming before the U.S. immigration system.

PWS

10-29-17

 

THIS IS DUE PROCESS? — 10th Cir. Rips BIA’s Anti-Asylum Decision-Making — BIA Ignores Record, Makes Up Law To “Stick It” To PRC Asylum Seeker! — Qiu v. Sessions! — “The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion!” — Read My Latest “Mini-Essay” — “HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS!”

16-9522

Qiu v. Sessions, 10th Cir., 09-12-17

PANEL: PHILLIPS, McKAY, and McHUGH, Circuit Judges.

OPINION BY: Judge McKay

KEY QUOTES:

The BIA held that Petitioner had not submitted sufficient evidence to show a change in country conditions, and thus that her motion to reopen was untimely under 8 U.S.C. § 1229a(c)(7)(C). The BIA first held that Petitioner had not submitted sufficient evidence to show that the treatment of Christians in China has worsened since her 2011 immigration hearing. This factual finding is not supported by substantial—or, indeed, any—evidence in the record. The agency provided no rational explanation as to how numerous accounts of a 300 percent increase in the persecution of Christians, “unprecedented violations” of religious freedoms beginning in 2014, and possibly “the most egregious and persistent” wave of persecution against Christians since the Cultural Revolution of 1966–76 was insufficient to show that the treatment of Christians in China had worsened since 2011. Nor is there anything in the record that would contradict Petitioner’s extensive evidence of a substantial increase in the government’s mistreatment of Christians since 2011. The BIA pointed to the fact that some portions of the State Department’s 2014 report include substantially similar language to the 2008 and 2009 reports. However, the State Department’s habit of cutting and pasting portions of its old reports into newer reports does nothing to refute all of the other evidence that the level and intensity of persecution against Christians has increased significantly since 2011. Nor does anything in the State Department report suggest that the U.S. Commission and various human-rights organizations are all reporting false data or drawing false conclusions about the deterioration of the treatment of Christians in China. The BIA thus abused its discretion by holding, completely contrary to all of the evidence, that Petitioner had not shown that the treatment of Christians in China has worsened in recent years.

The BIA also suggested that the substantial increase in the persecution of Christians was simply irrelevant because “[a] review of the record before the Immigration Judge indicated that China has long repressed religious freedom, and that underground or unregistered churches continued to experience varying degrees of official interference, harassment, and repression, including breaking up services, fines, detention, beatings, and torture.” (R. at 5.) However, the fact that there was already some level of persecution in China does not prevent Petitioner from showing a change in country conditions due to a significant increase in the level of persecution faced by Christians in her country. To hold otherwise would be to bar reopening for petitioners who file for asylum when they face some, albeit insufficient, risk of persecution in their country, while permitting reopening for petitioners who file for asylum without there being any danger of persecution, then seek reopening after their country fortuitously begins persecuting people who are in their protected category thereafter. But surely Congress did not intend for 8 U.S.C. § 1229a(c)(7)(C) to protect only petitioners who file frivolous asylum applications under no threat of persecution, while extending no help to petitioners who seek reopening after an existing pattern of persecution becomes dramatically worse. The BIA’s reasoning would lead to an absurd result, one we cannot condone.

Instead, we agree with the Second, Seventh, Ninth, and Eleventh Circuits that a significant increase in the level of persecution constitutes a material change in country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C) and that the BIA abuses its discretion when it fails to assess and consider a petitioner’s evidence that the persecution of others in his protected category has substantially worsened since the initial application. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006) (“Proof that persecution of Christians in Pakistan has become more common, intense, or far-reaching—i.e., the very proof that petitioner purports to have presented in filing his motion to reopen—would clearly bear on this objective inquiry [into the likelihood of future persecution]. Under the circumstances, the BIA’s refusal even to consider such evidence constitutes an abuse of discretion.”); Poradisova v. Gonzales, 420 F.3d 70, 81–82 (2d Cir. 2005) (holding that the BIA abused its discretion in denying a motion to reopen based on worsened country conditions: evidence that the human-rights situation in Belarus is “in an ‘accelerating deterioration’” and “that the situation has worsened since the Poradisovs’ original application” “certainly warranted more than a perfunctory (and clearly inaccurate) mention by the BIA as being ‘merely cumulative’”); Shu Han Liu v. Holder, 718 F.3d 706, 709, 712–13 (7th Cir. 2013) (holding that a petitioner seeking to file an untimely motion to reopen must meet her burden of “show[ing] that Chinese persecution of Christians (of her type) had worsened,” and concluding that the BIA abused its discretion in ignoring evidence that current conditions in China were worse than conditions at the date of the petitioner’s final removal hearing); Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014) (“The BIA abused its discretion when it failed to assess Chandra’s evidence that treatment of Christians in Indonesia had deteriorated since his 2002 removal hearing.”); Jiang v. U.S. Attorney Gen., 568 F.3d 1252, 1258 (11th Cir. 2009) (holding that the BIA clearly abused its discretion by overlooking or “inexplicably discount[ing]” evidence of “the recent increased enforcement of the one-child policy” in the petitioner’s province and hometown).

Finally, the BIA rejected Petitioner’s mother’s statement regarding her recent religious persecution in Petitioner’s hometown as both unreliable and irrelevant. The BIA held that the statement was unreliable for two reasons: (1) it was unsworn, and (2) it was prepared for the purposes of litigation. The first of these reasons is incorrect both as a matter of fact and as a matter of law. Petitioner’s mother concluded her statement by expressly swearing to the truth of everything she had stated therein, and thus the BIA’s factual finding that the statement was unsworn is refuted by the record. And even if the BIA were correct in its factual finding, we note that several “[o]ther circuits have admonished the Board for dismissing or according little weight to a statement due to its unsworn nature.” Yu Yun Zhang v. Holder, 702 F.3d 878, 881 (6th Cir. 2012). There is no statutory support for the BIA’s contention that documents at immigration hearings must be sworn, and “numerous courts,” “without so much as pausing to note the unsworn nature of a document, . . . have relied on such documents when considering claims of asylum applicants.” Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008). “Moreover,” the Fourth Circuit noted in Zuh, “it seems untenable to require a sworn statement from a person harassed because of a relationship with an asylum applicant and potentially endangered by helping that applicant.” Id.; see also Yu Yun Zhang, 702 F.3d at 881 (“Given the documented persecution of Christians in China, it seems an arbitrarily high threshold to require that letters attesting to government abuse and admitting membership in a persecuted organization be notarized.”).

As for the BIA’s second reason for rejecting the statement as unreliable, the fact that the evidence was prepared while litigation was ongoing is all but inevitable in the context of a motion to reopen, and we hold that the BIA may not entirely dismiss an asylum applicant’s evidence as unreliable based solely on the timing of its creation. Neither the BIA decision nor the government brief cites to a single statute or circuit court decision to support the idea that the timing of a statement’s creation is a dispositive or even permissible factor in evaluating its reliability in an asylum case. Furthermore, we note that the Sixth Circuit has held that it simply “does not matter that [evidence] may have been written for the express purpose of supporting [a petitioner’s] motion to reopen,” citing for support to a Ninth Circuit case which held that the BIA may not “denigrate the credibility” of letters written by the petitioner’s friends based simply on the inference that her friends “‘would tend to write supportive letters.’” Yu Yun Zhang, 702 F.3d at 882 (quoting Zavala-Bonilla v. INS, 730 F.3d 562, 565 (9th Cir. 1984)). We need not resolve this broader question in the case before us today; even if the timing of a statement’s creation might perhaps play some role in determining its credibility and the weight it should be afforded, the BIA cannot entirely dismiss a statement as unreliable based simply on the fact that it was prepared for purposes of litigation. The protections that the asylum statute was intended to provide would be gutted if we permitted the BIA to entirely reject all evidence presented by an asylum applicant that is prepared following the filing of the initial asylum application, and we see neither legal or logical support for such a ruling. We accordingly hold that the BIA abused its discretion in this case by rejecting Petitioner’s mother’s statement as unreliable based solely on the (erroneous) finding that it was unsworn and on the timing of its creation.

Finally, the BIA dismissed Petitioner’s mother’s statement as irrelevant because “the respondent’s mother is not similarly situated to the respondent, inasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. Tinasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion. 

The BIA provided no rational, factually supported reason for denying Petitioner’s motion to reopen. We conclude that the BIA abused its discretion by denying the motion on factually erroneous, legally frivolous, and logically unsound grounds, and we accordingly remand this case back to the BIA for further consideration. In so doing, we express no opinion as to the ultimate merits of the case.”

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HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS

By

Paul Wickham Schmidt

United States Immigration Judge (Retired)

Everyone should read the Tenth Circuit’s full opinion detailing the mounds of evidence that the BIA ignored and/or mischaracterized, at the above ink.

Folks, the 10th Circuit, former home of Justice Neil Gorsuch, is hardly known as a “haven” for asylum seekers. So, that the 10th finally is fed up with the BIA’s biased anti-asylum seeker decision making speaks volumes.

I’ve made the observation before that the BIA appears to be on “anti-asylum autopilot.” This looks for all the world like a “cut and paste” denial mass-produced by BIA staff from boilerplate that is unrelated to the facts, evidence, or, as this case shows, even the law. The BIA sometimes twists the law against asylum seekers; other times, as in this case, the BIA simply pretends that the law doesn’t exist by ignoring it. I can just imagine the BIA opinion drafter thinking to him or her self, “Oh boy, another routine PRC motion denial. This should sail through the panel without any problem.  Need to get those numbers up for the month.”

This is not an isolated incident. As I’ve pointed out before, there is a strong anti-asylum bias in the BIA’s decisions. Virtually no BIA precedents (particularly since the “Ashcroft purge” when true deliberation and dissent were tossed out the window) illustrate how commonly arising situations can and should result in many more grants to asylum seekers under the generous principles enunciated by the Supreme Court in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi, yet routinely ignored by today’s BIA.

The majority of asylum seekers are credible individuals coming from countries where persecution, torture, and human rights abuses are well-documented. Even in the Northern Triangle, where the BIA has intentionally skewed the law against asylum seekers, torture by gangs by and cartels while the corrupt government authorities are either complicit or “willfully blind” abounds. The BIA, and some U.S. Immigration Judges, have to work overtime and routimely turn a blind eye to both facts and the law to deny protection in the majority of cases.

At a minimum, most Southern Border arrivals fleeing gang violence should be getting temporary grants of protection under the CAT. Instead, they are often railroaded out of the country, sometimes without even seeing a U.S. Immigration Judge, other times with no legal assistance to help them in making a claim. And, the Sessions-led Justice Department had the absolute gall to claim that this lawless and unconstitutional behavior amounts to a “return to the rule of law” at EOIR!

Where’s the outrage from this type of gross abuse of the system by politicos who should have no role in the operations of the U.S. Immigration Courts? Where is the Congressional oversight of Sessions’s use of the USDOJ as a tool to advance a blatantly restrictionist, White Nationalist political agenda? How does a system that functions this poorly, on all levels, justify elimination of annual in-person training of U.S. Immigration Judges?

When you read the full decision, you can see the voluminous evidentiary package that the respondent’s counsel put together just to get a reopened hearing. And, it resulted in an illegal denial by the BIA. Only an appeal to a Court of Appeals saved the day. How could any unrepresented asylum seeker achieve due process in a system that demands unreasonable documentation, routinely denies individuals the legal assistance necessary to assemble and present such evidence, and then ignores the evidence when it is presented? What kind of due process is this?

And, the Article III Courts have to shoulder some of blame. In particular, the Fifth Circuit “goes along to get along” with the BIA, and turns a blind eye to violations of human rights laws and skewed factfinding in “rubber stamping” inadequate hearings coming from detention centers in obscure locations in Texas.

Reiterating a point I’ve made numerous times, why is a captive, enforcement-oriented, pro-Government tribunal that performs in the manner detailed in this case entitled to “deference” on either the facts or the law (so-called “Cheveon deference” that has been criticized by Justice Gorsuch and others)? What’s “expert” about a tribunal that routinely ignores and misconstrues basic asylum law as detailed in this decision?

At a minimum, in light of the types of gross miscarriages of justice that have come to light in some recent Court of Appeals decisions, the BIA should change its internal operating procedures to require that all asylum denials be reviewed by a  three-judge panel. But, don’t hold your breath. That would slow down the “assembly line” at the “Falls Church Service Center.” And turning out large numbers of final orders of removal without any real deliberation is what the “Sessions-Era BIA & EOIR” is all about.

Folks, we need an independent U.S. Immigration Court, including a competent Appellate Division (“BIA”). And in the future, selections of BIA Appellate Immigration Judges should be made in the same careful manner that applies to U.S. Supreme Court and Court of Appeals Judges.

The “life and death” power wielded by U.S. Immigration Judges and BIA Appellate Immigration Judges actually exceeds that of most Article III Judges. Yet the selection process for the Immigration Judiciary is opaque, cumbersome, secretive, closed, and consistently produces one-sided results skewed toward “insiders” or those with government experience. In other words, those with a history of “going along to get along” in the system rather than showing independent thinking and the courage to stand up for due process even when  it isn’t “in vogue” with the politicos in an Administration (and genuine due process for migrants is seldom”in vogue” these days in either GOP or Democratic Administrations).

Proven expertise, excellence, sensitivity to individual situations, and commitment to due process for migrants and correct application of human rights law and protections should be a minimum qualification for an Appellate Immigration Judge. And, the same question should be asked that was asked of Justice Gorsuch: “If necessary, are you willing to stand up and rule against the President and the Administration.” Obviously, in the case of the current BIA, the answer would largely be “No.”

PWS

09-13-17

 

THE HILL: N. Rappaport Says Time For Congress To Pull The Plug On Troubled EB-5 Investor Program

http://thehill.com/blogs/pundits-blog/immigration/328386-congress-pull-fraud-laden-visa-program-for-mostly-chinese

Nolan concludes:

“So, should the EB-5 program be terminated?

Yes, Congress has had more than 25 years to fix the EB-5 program. There is not going to be a legislative “fix.” The only viable alternative is to terminate it and start over.

I have a few suggestions for the new investment program. It should:

  • Raise the investment amounts;
  • Establish more detailed statutory requirements for regional centers;
  • Require Chinese investors to establish that they have permission from the Chinese government to remove enough money from China to meet the investment requirement;
  • Provide for input from the states on designating Targeted Employment Areas but have the designations made by the federal government;
  • Establish guidelines for making the “Targeted Employment Area” designations which eliminate the current gerrymandering process and ensure that the investment money goes where it is supposed to go; and
  • Include measures to eliminate fraud from the program.

Some lawmakers have given up already. Rep. Steve King (R-Iowa) and Sen. Dianne Feinstein (D-Calif.) introduced bills to terminate the EB-5 program. These members have the right idea. It is time to put an end to a failing, faulty program and implement immigration policies that actually yield the intended result.”

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Go on over to The Hill at the above link to read Nolan’s complete analysis.

PWS

04/12/17