HON. JEFFREY CHASE WITH SOME GREAT PRACTICAL ADVICE ON HOW YOU CAN MAKE THE 1ST CIRCUIT’S RECENT DECISION IN Aguilar-Escoto v. Sessions, No. 16-1090 (1st Cir. Oct. 27, 2017) “WORK FOR YOU!”

https://www.jeffreyschase.com/blog/2017/11/2/1st-cir-on-why-all-evidence-must-be-considered

1st Cir. on Why All Evidence Must Be Considered

In Aguilar-Escoto v. Sessions, No. 16-1090 (1st Cir. Oct. 27, 2017), the U.S. Court of Appeals for the First Circuit vacated the BIA’s erroneous decision affirming an immigration judge’s denial of withholding of removal.  The circuit court employed an interesting approach that lawyers and judges may wish to examine.

In Aguilar-Escoto, the Board upheld the immigration judge’s adverse credibility finding.  However, the petitioner also provided significant documentary evidence.  Although the IJ had considered and disposed of such evidence, the Board did not address it.  On appeal, the First Circuit adopted the view of the Eleventh Circuit in holding that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence…”  The court concluded that remand was required “irrespective of the supportability of the adverse credibility finding” in order for the Board to consider the previously neglected evidence.  However, the court reached such conclusion in an unusual way.

Although the IJ had correctly noted that the application was for withholding of removal, the Board carelessly stated that the petitioner “failed to meet her burden of proof for asylum.”  As those of us who practice in this field all know, asylum and withholding have different burdens of proof.  As the Board is fond of saying in its decisions, if the respondent did not meet her burden of proof for asylum, “it follows that she has not satisfied the more stringent burden that applies to withholding of removal.”  The Board used similar boilerplate in this case.

However, the circuit court here stated that in one way, the burden for asylum “may be more exacting.”  The court noted that asylum has a subjective and objective component: an applicant must establish both a genuine subjective fear, and then must show that such fear is objectively reasonable.  Although withholding of removal requires a much greater probability of harm (more than 50 percent, as opposed to the 10 percent needed for asylum), the court observed that the focus is entirely on the objective; i.e. there is no inquiry into the applicant’s own subjective fear.  In other words, asylum applicants must first convince the adjudicator that  they are genuinely afraid of being persecuted, and must then provide enough objective evidence to show that such fear is reasonable.  Withholding applicants must show through objective evidence that there is a greater than 50 percent chance that they will suffer persecution; their own fear is irrelevant to the inquiry.  The reason for this distinction is that asylum requires one to meet the statutory definition of “refugee,” which involves a “well-founded fear of persecution.”   Withholding of removal does not incorporate the refugee definition, but rather prohibits removal to a country where the Attorney General decides that the individual’s freedom would be threatened on account of a protected ground.  Thus, in asylum, the adjudicator is reviewing the reasonableness of the applicant’s own fear; in withholding of removal, the A.G. is the one determining the threat to safety.

The First Circuit explains the importance of this distinction: an adverse credibility finding impacts the genuineness of the applicant’s subjective fear.  However, it does not impact the independent objective evidence regarding the likelihood of the applicant suffering harm if returned to her country.  The court noted that in mistakenly thinking it was affirming a denial of asylum based on adverse credibility, the Board then added common boilerplate language that, since the applicant did not meet the lower burden required for asylum, it follows that she did not meet withholding’s higher burden.  But the court said that logic only applies where the subjective fear element is satisfied, but the claim was denied due to a failure to provide sufficient objective evidence to support such fear.  Here, as the adverse credibility finding precluded the petitioner from establishing a genuine subjective fear of persecution, the withholding of removal application required a separate inquiry as to whether the independent objective evidence was sufficient to establish the likelihood of persecution.  The record was therefore remanded for such inquiry.

To illustrate by way of example, let’s say an applicant applies for asylum and withholding based on her Christian religion.  The applicant claims to be afraid to return to her country because she received multiple threatening phone calls and letters referencing her religion.  The applicant also submits news articles and human rights reports detailing violent attacks on Christians in her hometown.  Now, let’s assume that the immigration judge believes that the respondent is in fact a practicing Christian.  However, the IJ concludes that the claimed threats lack credibility.  Asylum requires the applicant to first demonstrate a genuine subjective fear of persecution.  The respondent testified that her fear was based on the threats.  Under the First Circuit’s holding, if the IJ finds that the threats didn’t actually occur, the IJ can determine that the respondent did not establish a genuine fear of persecution.

However, what if the reports and articles believably establish that Christians run a high risk of being persecuted on account of their religion?  The IJ did believe that the respondent was in fact a practicing Christian.  According to the First Circuit, the IJ therefore just can’t dispose of the withholding claim by stating that the respondent didn’t meet the lower burden of proof for asylum, so therefore couldn’t have met the higher burden for withholding.  The IJ would instead have to apply a separate analysis as to whether the articles and reports independently establish that it is more likely than not the respondent would be persecuted on account of her religion if removed to her country.  If so, the respondent is entitled to withholding of removal (which is a non-discretionary form of relief).

Both immigration practitioners and government adjudicators should take note, and approach their arguments and drafting of decisions accordingly.  As an aside,  the nuances and degree of analysis that the circuit court’s decision requires of adjudicators underscores the danger of the Department of Justice’s stated intent to impose case completion quotas on immigration judges.  As my good friend and fellow blogger Paul Schmidt recently wrote on the topic (and as this case clearly illustrates), immigration judges are not piece workers, and fair court decisions are not widgets (well said, Paul!).

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

Thanks much for the “shout out” in your final sentence, Jeffrey!
Here’s a link to my previous blog on Aguilar-Escoto v. Sessions

HISTORY: In January 1972, A.G. John Mitchell Sat In His Paneled Office At The DOJ, Puffed On His Pipe, And Listened To Plans For A Whacko Criminal Conspiracy (Which Sent Him To Jail) — Since Then The Vaunted “Independence” Of The DOJ Has Been More Myth Than Reality — Trump Wants To Make The DOJ Part Of His Corrupt Political Empire — GOP Pols Talk Big But Do Little When It Comes To Standing Up To America’s Corruptor In Chief!

http://www.politico.com/magazine/story/2017/07/27/jeff-sessions-is-the-canary-in-the-coal-mine-215424?cid=apn

Joshua Zeitz writes in Politico:

“President Trump’s condemnation of his own attorney general may seem bizarre and unprecedented, but here’s something many in America’s gobsmacked chattering class are forgetting: The vaunted independence of the Justice Department took over a century to build, and it’s a far more fragile institution than we realize.

The spectacle of Trump attacking Jeff Sessions, one of his earliest and most stalwart supporters, as “beleaguered” and “unfair” is certainly jarring. The president seemingly cannot help but vent his frustration over the attorney general’s decision to step aside in the Department of Justice’s probe into Russian election interference—a step that led indirectly to the appointment of special counsel Robert Mueller. If Sessions “would have recused himself before the job,” Trump told the (“failing”) New YorkTimes. “I would have said ‘Thanks, Jeff, but I’m not going to take you.’”

The prospect that the president might fire Sessions, whose immigration policies and draconian approach to law enforcement are anathema to the left, places Democrats in an unusual position. They despise the attorney general but find themselves bound to protect the independence of his office. But the real test lies with Republicans, who have largely looked the other way as Trump has laid waste to one political norm after another. Will they draw a sharp line in the sand, or bury their heads in it?

It took well over a century for the office of the attorney general to accrue the very power and independence that Trump now stands poised to blow up. Originally a minor position with little authority or autonomy, over the years the AG emerged as the nation’s top law enforcement official and a key adviser to the president. The office withstood considerable strain in the latter quarter of the 20th century. But like so many civic institutions today, it is imperiled precisely because it is largely the product of traditions, and administrative rules that capture those traditions, rather than permanent statutes or laws. Once broken, it may not be so easily reassembled.”

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Read the complete article, which contains a fascinating short history of the DOJ, at the link.

Washington was, in fact, built on swampland with Tiber Creek running through it. I’m sort of expecting that the old swamp will just open up again some day and swallow Trump and the whole corrupt mess surrounding him.

PWS

07-27-17

 

 

WHAT’S TRUMP’S TRAVEL BAN PROTECTING US FROM? — DUH, NOTHING, OF COURSE — But, It IS Distracting Attention From The REAL Threat To Our National Security!

https://www.washingtonpost.com/news/post-nation/wp/2017/06/26/supreme-court-partially-restores-trump-travel-ban-which-wouldnt-have-kept-out-anyone-behind-deadly-terrorist-attacks/?utm_term=.b3e979184075

Mark Berman writes in the Washington Post:

“The Supreme Court on Monday agreed to let a limited version of President Trump’s travel ban take effect, so we are republishing an updated version of this story.

President Trump’s executive order temporarily banning travelers from six Muslim-majority nations due to “heightened concerns about terrorism” was quickly frozen by the courts, much like an earlier version of the ban, until the Supreme Court acted on Monday.

The justices said they would let the ban partially take effect and, in the ruling, announced plans to consider the case later this year. The Supreme Court made a key exception, saying the ban could not be “enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” But otherwise, the Trump administration is now free to impose a 90-day ban on travelers from six countries that it had said posed certain “national security risks.”

The second travel ban had something big in common with the first version: It would not have kept out of the United States anyone responsible for a deadly terrorist attack since 2001.”

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Read the complete article (with charts and map) at the above link.

Question of the Day:

In any “normal” Administration, how many of the characters holding positions in the Trump White House would be granted high level security clearances (including, of course, the “Tweeter-in-Chief” himself)?

PWS

06-30-17

 

 

 

AMERICAN GULAG: NGOs Fear Administration’s Planned Detention Empire Will Be Deadly!

http://www.huffingtonpost.com/entry/trump-immigrant-detention_us_58f0e2b7e4b0bb9638e34621

Elise Foley reports in HuffPost:

“WASHINGTON ― Human rights advocates spent years fighting for even small improvements to the system that detains men, women and children waiting to be either deported or released back into the U.S. Now they fear the progress they have made could disappear under President Donald Trump, who has promised harsher treatment of undocumented immigrants.

“This administration is prepared to make conditions at immigrant detention even worse than they already are, which, given that for some people they’re already fatal, is terrifying,” said Mary Small, policy director of the advocacy group Detention Watch Network.

Trump’s Department of Homeland Security is considering looser regulations for new contracts with jails to hold immigrants in deportation proceedings, The New York Times reported earlier this month. That agreement would allow jails to treat immigrants detained for civil offenses the same way they treat people charged with crimes.

The department also plans to eliminate an office at Immigration and Customs Enforcement that focuses on improving the detention system and to ramp up detention and deportation efforts.

Trump’s boosters consider these to be good things ― earlier this month, hosts on “Fox & Friends” gleefully remarked that the “party’s over” at immigrant detention centers, grumbling about detainees being given clean sheets and outdoor recreation time.

In reality, immigrant detention centers ― some of which are inside jails facilities or former prisons ― are bleak places. Inmates report being denied medical care, held in solitary confinement, given inedible food and other mistreatment. This is all on top of the struggle of being locked up, often far from family and legal help.

There’s always a tension between ‘Do we get rid of the cage or do we make a better cage?’Ruthie Epstein, formerly of Human Rights First

The facilities are supposed to be for civil detention, not criminal detention like a prison ― being in the country without authorization is not in itself a crime. Advocates are concerned that the Trump administration’s discussion of new contracts for jails to detain immigrants is more proof that officials will disregard standards meant to make immigrant detention less punitive.

Chris Daley, an attorney with Just Detention International, said his group is “very afraid” those standards aren’t going to be enforced and that “we’re just going to lose any sense that folks are not there under criminal charges.”

. . . .

“If ICE is no longer tracking the use of solitary confinement or no longer requiring that people who are in mental health crisis are checked on every 15 minutes, that can kill,” said Carl Takei, an attorney with the American Civil Liberties Union’s National Prison Project.

It would be difficult for ICE to dismiss the standards set forth in the Prison Rape Elimination Act because they are regulations. But weakening other standards would hurt PREA’s effectiveness, Daley said.

“You can’t have effective sexual abuse prevention programs if you have folks who don’t have access to appropriate materials in the right language; who can’t communicate concerns they have about threats or violence; who are just held in solitary confinement as a matter of course or who otherwise are just being treated in a demeaning way that compromises their dignity,” he said.

ICE hasn’t made any major changes yet, other than eliminating its Office of Detention Policy and Planning. The office’s staff and mission will be absorbed into other parts of the agency, according to ICE spokeswoman Sarah Rodriguez.

Officials are “examining a variety of detention models to determine which models would best meet anticipated detention needs” as part of one of Trump’s executive orders on immigration, Rodriguez said. “As new options are explored, ICE’s commitment to maintaining excellent facilities and providing first class medical care to those in our custody remains unchanged.”

The new contracts could be evaluated based on a checklist from the U.S. Marshals Service, The New York Times reported last week. That checklist is “ridiculous in its lack of detail,” Takei said. The contracts wouldn’t specify what policies jails holding immigrants must maintain for medical health, suicide prevention or solitary confinement, other than that they need to have some sort of policy, according to the Times.

Advocates are bracing for the worst.

“We’ve seen important but very incremental change, so to see change that’s taken so long to come about ― and that still had gaps but that was at least a step toward greater accountability and toward better conditions in these facilities ― to see that now be threatened to be reversed is troubling,” said Katharina Obser, senior program officer at the Women’s Refugee Commission.

They will be watching closely for human rights violations, from detainees being denied due process to poor conditions and even increased deaths in detention.

“These policies are a recipe for a human rights catastrophe in immigrant detention,” Takei said, “and we are prepared to sue as soon as that human rights catastrophe comes to pass.”

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Of course, an unstated reason for purposely allowing immigration detention conditions to deteriorate is to discourage migrants from 1) coming to the U.S. to seek refuge, 2) making claims for refuge, and 3) continuing to pursue those claims.

By locating U.S. Immigration Courts in private prisons and local facilities in obscure locations where counsel are not available, the Department of Justice purposely erodes due process for the purpose of making the courts part of the enforcement, deterrence. deportation mechanism.

At some point, the Article III Courts will have to decide how much of this unseemly travesty of justice they are willing to allow.

PWS

04-26-17

 

LA TIMES EDITORIAL #5: “Conspiracy Theorist In Chief”

http://www.latimes.com/projects/la-ed-conspiracy-theorist-in-chief/

“It was bad enough back in 2011 when Donald Trump began peddling the crackpot conspiracy theory that President Barack Obama was not a native-born American. But at least Trump was just a private citizen then.

By the time he tweeted last month that Obama had sunk so low as to “tapp [sic] my phones during the very sacred election process,” Trump was a sitting president accusing a predecessor of what would have been an impeachable offense.

Trump went public with this absurd accusation without consulting the law enforcement and intelligence officials who would have disabused him of a conspiracy theory he apparently imbibed from right-wing media. After the FBI director debunked it, Trump held fast, claiming he hadn’t meant that he had been literally wiretapped.

Most people know by now that the new president of the United States trafficks in untruths and half-truths, and that his word cannot be taken at face value.

Even more troubling, though, is that much of his misinformation is of the creepiest kind. Implausible conspiracy theories from fly-by-night websites; unsubstantiated speculations from supermarket tabloids. Bigoted stories he may have simply made up; stuff he heard on TV talk shows.

. . . .
This is pathetic, but it’s also alarming. If Trump feels free to take to Twitter to make wild, paranoid, unsubstantiated accusations against his predecessor, why should the nation believe what he says about a North Korean missile test, Russian troop movements in Europe or a natural disaster in the United States?

Trump’s willingness to embrace unproven, conspiratorial and even racist theories became clear during the campaign, when he repeatedly told tall tales that seemed to reinforce ugly stereotypes about minorities. Take his now famous assertion that he watched thousands of people in “a heavy Arab population” in New Jersey cheer the collapse of the World Trade Center on 9/11, an astonishing account that no one has been able to verify. PolitiFact rated that as “Pants on Fire.”

Or his retweeting of a bogus crime statistic purporting to show that 81% of white homicide victims are killed by blacks. (The correct figure was 15%.)

On several occasions he retweeted white nationalists. (Remember the image of Hillary Clinton and the star of David, for instance?)

His engagement with, to put it politely, out-of-the-mainstream ideas has attracted some strange bedfellows. It may not be fair to attribute to his senior aide, Steve Bannon, all the views that were published on the controversial alt-right site Breitbart.com, of which Bannon was the executive chairman. But it is certainly fair to wonder why Trump has elevated to a senior West Wing position a man who has trafficked in nonsense, bigotry and rank speculation.”

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Read the entire editorial, part of a series that has been posted on this blog, at the above link.

For me, the key quote: “But it is certainly fair to wonder why Trump has elevated to a senior West Wing position a man who has trafficked in nonsense, bigotry and rank speculation.”

Apparently, Bannon and his crowd are now locked in a “death struggle” with the “Trump-Kushner Family” over who gets the President’s ear. Consider Bannon’s ouster from the NSC, where he had absolutely no business being in the first place (does this guy really have a security clearance?), as a victory for Kushner and Gen. McMaster. That’s notwithstanding planted “fake news” from the Bannon faction downplaying the move and absurdly attempting to pass it off as “normal evolution.”

But, Bannon is a lifetime “conspirator” and not someone who takes slights in stride (just like his boss). Probably only Kellyanne Conway had more to do with Trump being in the White House today. And, Bannon isn’t someone Trump wants on the “outside” lobbing bombs and grenades back at to Oval Office and talking trash to Trump’s Breitbart-reading base. So, I wouldn’t count him out.

PWS

04/06/17

NYT: Tilting At Windmills — Trump’s Coal Mining Fantasyland — “Foreman says these jobs are going boys and they ain’t coming back, To your hometown, To your hometown!”**

**Bruce Springtsteen — My Hometown

https://www.nytimes.com/2017/03/29/business/coal-jobs-trump-appalachia.html?smprod=nytcore-iphone&smid=nytcore-iphone-share&_r=0

Hiroko Tabushi writes in the NY Tmes:

“In Decatur, Ill., far from the coal mines of Appalachia, Caterpillar engineers are working on the future of mining: mammoth haul trucks that drive themselves.

The trucks have no drivers, not even remote operators. Instead, the 850,000-pound vehicles rely on self-driving technology, the latest in an increasingly autonomous line of trucks and drills that are removing some of the human element from digging for coal.

When President Trump moved on Tuesday to dismantle the Obama administration’s climate change efforts, he promised it would bring coal-mining jobs back to America. But the jobs he alluded to — hardy miners in mazelike tunnels with picks and shovels — have steadily become vestiges of the past.

Pressured by cheap and abundant natural gas, coal is in a precipitous decline, now making up just a third of electricity generation in the United States. Renewables are fast becoming competitive with coal on price. Electricity sales are trending downward, and coal exports are falling.

All the while, the coal industry has been replacing workers with machines and explosives. Energy and labor specialists say that no one — including Mr. Trump — can bring them all back.

“People think of coal mining as some 1890s, colorful, populous frontier activity, but it’s much better to think of it as a high-tech industry with far fewer miners and more engineers and coders,” said Mark Muro, senior fellow at the Brookings Institution’s Metropolitan Policy Program.

“The regulatory changes are entirely outweighed by these technological changes, not to mention the price of natural gas or renewables,” Mr. Muro said. “Even if you brought back demand for coal, you wouldn’t bring back the same number of workers.”

. . . .

“In 1980, the industry employed about 242,000 people. By 2015, that figure had plunged 60 percent, to fewer than 100,000, even as coal production edged up 8 percent. Helped by automation, worker productivity more than tripled over the same period, according to data from the federal Energy Information Administration and the Brookings Institution.

And a recent study by the International Institute for Sustainable Development and the Columbia Center on Sustainable Investment predicted that automation was likely to replace 40 to 80 percent of workers at mines.

Automation makes mines more “safe, efficient and productive,” said Corrie Scott, a Caterpillar spokeswoman. “While mines would not need as many drivers, they will need more people who use and understand the latest technology,” she said.

“However way you spin it, gas and renewables are going to continue to replace coal,” said Nicolas Maennling, senior economics and policy researcher at Columbia University and an author of the automation study.

“And in order to stay competitive, coal will have to increase automation,” he said. “What Mr. Trump does will make little difference.”

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Yup,  I understand the President is a leader, not a technocrat. That’s why a good political leader surrounds him or herself with competent staff and also draws on the huge wealth of technical expertise available in the Federal Civil Service.

Surrounding yourself instead with idealogical know-nothings and sycophants like Bannon, Miller, and Priebus is pure political malpractice at the highest level.

(Note that I didn’t include Conway in the group. I think she’s probably the smartest of the bunch. She was the “brains” behind what has to go down as one of the most unexpected electoral triumphs in American political history, regardless of whether or not you like the result. And I wouldn’t accuse her of being a sycophant. But, she is totally loyal to a fault, and therefore keeps throwing herself on her sword over and over for The Leader. I also didn’t include Spicer. He has his bad days, for sure. But, he has the hardest job in Washington, and that includes The Leader himself. I actually doubt anyone could do it better. He won’t last too long. But, after he’s gone, not only Melissa McCarthy is likely to miss him.)

PWS

03/30/17