“INEXCUSABLE OMISSIONS” — 4th Cir. Slams BIA For Unjustified Denial Of Family-Based Gang Threat Asylum Claim From El Salvador — BIA’s Shoddy Factual & Legal Analysis Of “One Central Reason” Exposed — ZAVALETA-POLICIANO v. SESSIONS!


ZAVALETA-POLICIANO v. SESSIONS, 4th Cir., as amended 09-18-17 (Published)

PANEL:  GREGORY, Chief Judge, WILKINSON, Circuit Judge, and DAVIS, Senior Circuit Judge

OPINION BY:  Chief Judge Gregory


“We hold that the BIA abused its discretion in affirming the IJ’s clearly erroneous factual finding. To start, the IJ unjustifiably relied on the fact that the threatening notes themselves did not explain why Zavaleta Policiano was targeted. As this Court recently explained, the single-minded focus on the “articulated purpose” for the threats while “failing to consider the intertwined reasons for those threats” represents “a misapplication of the statutory nexus standard.” Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017). It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone. The IJ’s heavy reliance on the fact that El Salvadoran gangs target various groups of people in the country was similarly misguided. That “the criminal activities of MS-13 affect the population as a whole,” we have explained, is simply “beside the point” in evaluating an individual’s particular claim. Crespin-Valladares, 632 F.3d at 127.

More fundamentally, the IJ and BIA failed to appreciate, or even address, critical evidence in the record. It is this Court’s responsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009). The IJ did discuss the threatening notes (although while drawing unwarranted conclusions, as discussed above). But the IJ failed to address, or to assign any weight to, the significant body of unrebutted, indeed, undisputed, probative evidence giving meaning and context to the threatening notes: (1) Zavaleta Policiano and her father’s stores, as well as their familial relationship, were well-known in the community; (2) MS-13 threatened Zavaleta Policiano several times by phone; (3) Zavaleta Policiano’s statement that MS-13 “threatened me because my father had left;” and (4) the threats against Zavaleta Policiano began immediately after her father fled to Mexico. These are inexcusable omissions in the agency’s analysis.

The Government asks us to reject much of the overlooked evidence, characterizing it as Zavaleta Policiano’s “subjective beliefs [] as to the gangs’ motives.” Appellees’ Br. 22–23. This argument does not explain away the IJ’s and BIA’s wholesale failure to discuss the evidence, however. See Ai Hua Chen v. Holder, 742 F.3d 171, 179 (4th Cir. 2014) (explaining that the IJ and BIA must “offer a specific, cogent reason for rejecting evidence” (quoting Tassi, 660 F.3d at 720)). What is more, Zavaleta Policiano’s affidavit includes much more than her “subjective beliefs”—it contains key evidence of the context, nature, frequency, and timing of the gang’s threats against her and her family. By stipulating to the credibility and veracity of the affidavit, the Government forwent the opportunity to probe and weaken the evidentiary basis of Zavaleta Policiano’s claims.

When considering the unchallenged record evidence, we are compelled to conclude that Zavaleta Policiano’s familial relationship to her father was “at least one central reason” MS-13 targeted and threatened her. The evidence shows that MS-13 explicitly threatened to kill Zavaleta Policiano’s father and his family if he did not pay the extortion demands, and that “[i]mmediately after” he fled El Salvador, the gang began threatening Zavaleta Policiano. A.R. 210. The timing of the threats against Zavaleta Policiano is key, as it indicates that MS-13 was following up on its prior threat to target Barrientos’s family if he did not accede to the gang’s demands. This explanation appears especially probable given the absence of record evidence that Zavaleta Policiano was ever threatened before her father’s departure. Beyond the timing, Zavaleta Policiano’s affidavit outlines the well-known relationship between the two businesses and the Policiano family, and contextualizes her statement that she was threatened because her father left. And just as MS-13 threatened Zavaleta Barrientos and his children, the gang threatened Zavaleta Policiano and her children, suggesting a pattern of targeting nuclear family members. The totality of this undisputed evidence demonstrates that Zavaleta Policiano was persecuted on account of her family membership.

We add that the BIA’s attempt to distinguish our precedent is unpersuasive. The BIA found, in a single sentence without any analysis, that Zavaleta Policiano’s claim is distinct from the one at issue in Hernandez-Avalos. A.R. 4 (mentioning Hernandez- Avalos, 784 F.3d at 949–50). But that decision actually bolsters Zavaleta Policiano’s position. There, the BIA denied asylum to a mother who was threatened by an El Salvadoran gang after she refused to allow her son to join the gang. The BIA held that the mother was not threatened on the basis of familial ties, but rather “because she would not consent to her son engaging in a criminal activity.” Hernandez-Avalos, 784 F.3d at 949 (citation omitted). In other words, the BIA determined that the gang’s threats against the mother were motivated by its desire to recruit the son. This Court rejected that “excessively narrow reading of the requirement that persecution be undertaken ‘on account of membership in a nuclear family.’” Id. We instead found that the nexus requirement was satisfied, explaining that the mother’s relationship “to her son is why she, and not another person, was threatened with death if she did not allow him to join [the gang].” Id. at 950. The same logic applies here. MS-13 warned Zavaleta Barrientos that it would target his family if he did not pay the extortion demands, and the gang in fact threatened Zavaleta Policiano immediately after her father left. Zavaleta Policiano’s relationship to her father is why she, rather than some other person, was targeted for extortion.

For all the reasons outlined above, we conclude that the BIA erred by affirming the IJ’s clearly erroneous finding. Zavaleta Policiano was not required to prove that the gang’s threats were “exclusively” motivated by her family ties—such “a requirement defies common sense.” See Cruz, 853 F.3d at 130. She only needed to show that the relationship with her father was “at least one central reason” MS-13 threatened her. Because Zavaleta Policiano made this showing, we find the BIA decision to be manifestly contrary to law and an abuse of discretion. See Hernandez-Avalos, 784 F.3d at 953 n.10. By establishing that she was persecuted on account of her family membership, Zavaleta Policiano has satisfied the first two requirements of her asylum claim.”


Read the complete decision at the above link.

“Inexcusable” describes how the Immigration Courts under the BIA’s defective leadership are skewing facts and law to deny protection to Central American refugees. Not everyone can get a great lawyer like Tamara Jezic, and not every Circuit Court is as conscientious as this Fourth Circuit panel. That means that many of those Central Americans being railroaded through the system by DHS and EOIR are being improperly denied protection.

How can Federal Courts including the Supremes justify continuing to give “deference” to an appellate body that possesses neither expertise in the law nor care in reviewing records? It’s clear that BIA appellate review has become highly politicized and biased against asylum seekers. How much more of this nonsense are the Federal Courts going to put up with?

It also appears that the term “excessively narrow reading” is a perfect description of the BIA’s recent precedent in  Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), in which the BIA tortured the law to come up with a way of denying most family-based claims. Will the Fourth Circuit “call out” the BIA on this attempt to evade the law by denying family-based asylum claims?

We need an independent Article I Immigration Court!

Thanks and congratulations to respondent’s attorney Tamara Jezic for alerting me to this important decision.





MARCH MADNESS: Heartbreak!! Gators’ Chiozza’s Buzzer Beating 3-Pointer Ends Badger Run 84-83 In OT!🏀😢

MADISON SQUARE GARDEN, NY. Just as the Badgers’ season was about to end, senior guard Zach Showalter (14 pts.) hit an impossible 3-point shot, releasing behind the arc as he flew over it to send the Sweet Sixteen game into an unlikely overtime.

In overtime, the Badgers, without senior Vito Brown (10 pts.) who had fouled out, with star senior guard Bronson Koenig (13 pts.) hobbled with a leg injury, and with Ethan Happ  (21 pts.) nursing four fouls, dominated.  Following two free throws by senior forward Nigel Hayes (22 pts.) with 4 seconds remaining, the Badgers held a 83-81 lead and appeared headed to the Elite Eight.

But, the Gators’ junior guard Chris Chiozza returned Showalter’s favor, and then some, by hitting the almost identical shot as the buzzer sounded.  This time, however, the three pointer ended the game and set off a jubilant celebration for the Gators, as they, not the Badgers, moved on to the Elite Eight.

The stunned Badgers could do nothing but watch in dismay and disbelief.  They had squandered their chances.

With under a minute to go in OT, junior Kahlil Iverson (3 pts.) had a chance at a breakaway slam dunk that in all likelihood would have sealed the game. But, somehow, he allowed himself to be “stuffed” by less athletic Gator Canyon Barry (son of NBA great rick Barry).

And, this time, the Badgers’s crummy free throw shooting (20-30, 67%) cost them the game. Two more free throws down the stretch would have put them in the Elite Eight. Wisconsin also turned the ball over 16 times and committed an amazing 26 fouls to help seal their own fate.

Sophomore KeVaughn Allen led the Gators with a career-high 35 points.  While Chiozza had only 8 points, he scored the final five to secure the victory for the Gators.  Florida (27-9) moves on to play the upstart South Carolina Gamecocks (25-10) in Sunday’s Elite Eight matchup, with a trip to the Final Four on the line.

Meanwhile, the Badgers close their 2016-17 campaign at 27-10. But, for seniors Hayes, Koenig, Brown , and Showalter, who had gone to the Final Four twice in their illustrious careers, there will be no tomorrow, at least at Wisconsin.



MARCH MADNESS: Badgers Haunted, Motivated By Memories Of Last-Minute Meltdown & Loss To Irish In Last Year’s Sweet 16 — Get My “Instant Pregame Mini-Analysis Here!”🏀😎


Jim Polzin reports in the Madison Cap Times:

“The moment is fresh nearly 12 months later, partly because the pain still lingers for the members of the University of Wisconsin men’s basketball team.

But even if there were a way for the Badgers to wipe the memory of a 61-56 loss to Notre Dame to end the 2015-16 season from their brains, it wouldn’t matter because their coach keeps bringing it up.

“It should stay in their minds since we mention it about every week,” Greg Gard said. “We referred to Notre Dame more than any past opponent, I think, since I’ve been here in terms of how it ended.”

It didn’t end pretty for UW, which self-destructed in the final minute against the Fighting Irish and watched its season come to an abrupt end in the Sweet 16.

The Badgers (27-9) have arrived at the same step on the NCAA tournament ladder a year later. They’ll face Florida (26-8) on Friday night in an East region semifinal at Madison Square Garden in New York.”


Schmidt’s Instant Pregame Mini-Analysis

In an earlier post, http://wp.me/p8eeJm-tJ I highlighted the factors that could allow Wisconsin to go all the way to the Final Four:  experience, inside play, and Bronson Koenig. All three of those strengths were on abundant display in the first two games as the Badgers downed #9 Virginia Tech and then upset #1 Villanova.

The Badgers also minimized two of the three weaknesses that I thought could make them an “early out:” offensive inconsistency and turnovers.

The other factor was horrible free throw shooting. While the Badgers did have horrible free throw shooting (43%) against Villanova, fortunately it didn’t cost them the game.  Ironically, Villanova, a much better free throw shooting team (71%) missed a key charity toss down the stretch which would have given them a one point lead and might have changed Wisconsin’s strategy last minute strategy of having Nigel Hayes drive for a two-pointer.

Florida plays tough defense.  So, in addition to maintaining offensive consistency and getting continued outstanding play from Koenig, Hayes, Ethan Happ, and Vito Brown, the Badgers will have to hold down the turnovers and sink their free throws to escape the Gators.

Tune in on Friday night @ 10:00 PM on TBS to see what happens, live from Madison Square Garden in NY!





MARCH MADNESS: Badgers Head to Fourth Consecutive “Sweet 16” After Taking Out Top Seeded Defending Champ Villanova In 65-62 Thriller — Seniors N. Hayes, B. Koenig, & V. Brown Come Up Huge In Clutch As UW Overcomes Late 7 Point Deficit to Win!

BUFFALO, NY — A few weeks ago, some disgruntled Wisconsin fans actually were calling for second-year coach Greg Gard’s head after the Badgers turned in lackluster losing performances against the likes of Ohio State and Iowa. Their once-promising season seemed on the brink of total collapse down the stretch of the Big 10 regular season.

This afternoon, with 5:07 remaining in a “Round of 32” game, and the Badgers trailing by 7 points, it looked like their season was over notwithstanding a valiant effort against the defending NCAA Champs. After all, stars Bronson Koenig and Ethan Happ were both saddled with foul trouble, and Villanova, led by superstar senior guard Josh Hart (19 pts) and freshman sensation guard Donte DiVincenzo (15 pts), was pulling away for the kill.

But, the battle-tested Badgers weren’t yet ready to depart the dance. They rallied behind their senior leaders.

With ice water in his veins, Koenig (17 pts, 2-6 3-pt) drilled a 3-pointer to put the Badgers up 62-59 late. However, a bad exchange between Koenig and senior forward Nigel Hayes resulted in a turnover allowing the Wildcats to pull even at 62.

Then, the “play of the game!” Coming out of a time-out, Hayes (19 pts, 8 rebounds) drove the baseline and made a spectacular “Michael Jordan type” reverse layup to put the Badgers up 64-62 with 11.4 seconds to go.  But, the champs were’t ready to go down.  11.4 seconds is an eternity in March Madness.

Villanova got the ball to Hart who, with Koenig and Happ having to play off with four fouls apiece, drove for a sure-fire tying layup. But, he didn’t count on Badger senior forward Vito Brown, who had broken out of a severe shooting slump by draining 3 of 6 three pointers. Brown stripped Hart, and then was fouled on the play with 3.4 seconds remaining.

Brown hit the first free throw (insuring the Badgers at least a tie). After missing the second, he hustled down to the baseline to help Hayes bottle up Villanova and prevent any chance of a last second shot as time ran out.  Brown, a talented singer, also performed (pre-recorded) during the NCAA/CBS TV “lead in” to today’s game!

The #8 seed Badgers had triumphed! Amid the heroics of Hayes, Koenig, and Brown, the great effort by Happ, who added a huge 12 points and 8 rebounds despite playing most of the game in foul trouble and senior Zach Showalter who had several key defensive plays should not be forgotten.

The classy Wildcats and their even classier coach Jay Wright finish the season at 32-4. And, at least for the next week so, the voices in Madison calling for Greg Gard’s ouster have been silenced.

The Badgers thus head for their fourth consecutive “Sweet 16,” their sixth in seven seasons. The Badgers (27-9) will take on the #4 Florida Gators (26-8) from the SEC in Madison Square Garden, NY.  “Badgers v. Gators” —  a match of two of the most dangerous and ferocious animals known to man (forget that “smiling Teddy-bear version” of Bucky that I post below.  That’s just to throw Bucky’s opponents off.) Game time is 10:00 PM Friday on TBS, with a trip to the “Elite Eight” at stake. Don’t miss it!





MARCH MADNESS: Badgers Get Big Games From Koenig & Hayes To Move By Hokies 84 – 74 — Play #1 Villanova In “Round of 32” On Saturday 🏀

BUFFALO, NY.  The #8 Wisconsin Badgers downed the #9 Virginia Tech Hokies 84-74 in NCAA East Regional First Round action in Buffalo, NY Thursday night. Senior sharpshooter Bronson Koenig led the way with 28 points, including a club-recored 8-17 on three-pointers. Senior forward Nigel Hayes added 16 with 10 rebounds and went 8 of 9 from the free throw line, a remarkable achievement for a 56% free throw shooter coming into the game. The Badgers won the game on the offensive boards where they grabbed 14 to the Hokies 4 on their way to a hefty 33-22 rebounding advantage.

As predicted, the Hokies played the Badgers tough and remained within three points for most of the second half. Senior Zach LeDay had 23 points before fouling out late in his last college game. Ty Outlaw added 16 for the Hokies, who finished the season at 22-11.

The Badgers are now 26-9 and will face the #1 seed Villanova Wildcats (32-3) in the Round of 32 on Saturday.  Villanova beat surprisingly competitive #16 Mt. St. Mary’s 76-56, after trailing most of the first half. Game time is still TBD.




MARCH MADNESS: Badgers Limp Into NCAA Tourney With #8 Seed In East After 71-56 Thumping By Wolverines In B10 Title Game — Will Play Tough #9 Hokies Thursday Night In Buffalo!

The Michigan Wolverines soundly thrashed the Wisconsin Badgers 71-56 in the Big10 title game at the Verizon Center in DC on Sunday afternoon.  The Badgers got off to a credible start, trailing only 33-32 at halftime.  But, an eight minute stretch without a field goal at the start of the second half sealed the Badgers’ fate. Meanwhile, Michigan pulled away with great outside shooting, solid defense, and some fast break points.

The Badgers (25-9, 12-6) hence will go to their 19th consecutive NCAA Tournament as a #8 seed, far lower than many had projected. However, given the Badgers weak schedule and their lackluster performance in the second half of the season, winning just four of their last ten games, the seed seems about right.

The Badgers will have to play much better than they did Sunday against Michigan to get past the tough Virginia Tech Hokies (20-10, 10-8) from the ACC in the round one East Regional game at Buffalo, NY on Thursday night at 9:40 PM. The Hokies are a solid group who can make the three-ball, and they shoot a better percentage from the field and the line than the Badgers.  They are led by third-year coach Buzz Williams, who formerly coached the Badgers’ in-state arch-rival Marquette Golden Eagles.  The winner likely gets the unenviable task of going up against #1 seed and defending champ Villanova on Saturday.

Why the Badgers could go deep:

Experience:  Four of the Badger starters were members of the 2013 and 2014 teams that went to back to back Final Fours.

Inside play: When they are “on” Senior Forward Nigel Hayes and redshirt Sophomore Ethan Happ might be the most formidable “in the paint duo” in the country.

Bronson Koenig:  When he is “feeling it” Senior Guard Koenig is a dangerous, clutch three-point shooter and a reliable playmaker.

Why they probably won’t go far:

Inconsistent offense:  The long dry spell against Michigan unfortunately wasn’t unusual this season. It will be a killer against tournament teams.

Horrible free throw shooting:  In the past, the Badgers have been among the nation’s leaders from the line.  This year, however, they shot only 64%, leaving far too many points on the line.  Happ, their best all-around player, is the worst of the bunch, shooting only 50% from the stripe. This actually makes him a liability down the stretch in close games.

Too many turnovers:  In the past, Wisconsin was known for a disciplined offense and taking care of the ball. This year, however, they have thrown it away with regularity, including in some key situations that cost them games. Just can’t do that against good tournament teams.






Badgers Snap Two-Game Skid With Convincing 71-60 Home Victory Over Terps!

MADISON, WI.  Just when they needed him most, Senior Nigel Hayes came out of his funk and Bronson Koenig returned to the lineup to give the #11 Badgers (22-5, 11-3) a hard fought victory over the #23 Maryland Terps (22-5, 10-4) at the Kohl Center Sunday afternoon. The Badgers remained in a tie with the Purdue Boilermakers for the Big 10 lead going into the final stretch.

The Terps came out strong and jumped to a 33-27 halftime lead, the Badgers biggest deficit of the season. But, the Badgers finally looked like the “old Badgers” in the second half, shooting 51%, playing tough defense, turning the ball over only once, and knocking down some clutch free throws to put the game out of reach.

14 of Hayes’s 21 points came in the second half, as did all 9 of Keonig’s points. Playing his tough inside game, which had been missing recently, and hitting mid-range jumpers instead of throwing up 3-point bricks, Hayes also led Bucky with 10 rebounds as the Badgers crushed the Terps on the boards 44-27.

Sensational redshirt sophomore center Ethan Happ turned in another solid 20 point performance. He  undoubtedly was happy to have some help from his friends this time. Recently, Happ has carried the team as various starters have been injured or slumped.

Redshirt freshman Brevin Pritzil (7 pts, 7 boards) had some good minutes off the bench, and looks to have moved into the “seventh man” position behind freshman guard D’Mitrik Trice. Weak bench play has plagued the Badgers this season.

The Badgers second half heroics overshadowed a tremendous performance by Terps’ all-everything guard Melo Trimble, who was nearly unstoppable, scoring 27 points, nearly half his team’s total.

On Thursday, the Badgers travel to Columbus, OH, where they hope to complete a sweep of the Buckeyes (15-13, 5-10). Meanwhile, the Terps will attempt to bounce back against the Minnesota Golden Gophers Wednesday at home.