🤪 GARLAND’S BIA DRUBBED AGAIN ON PSG — This Time It’s 1st Cir! — Ferreira v. Garland!

Trial By Ordeal
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past.  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

Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:

[Ferreira] [2024.3.21] Opinion

Victory in the 1st Circuit

Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).

However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):

In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.

The court directed:

On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.

Both of those cited decisions were quite favorable to the petitioners.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

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

Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!

The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous! It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).

https://www.eeas.europa.eu/sites/default/files/documents/2024/20240304_spotlight_national_strategic_action_plan_for_trinidad_and_tobago_0.pdf

Knightess
Knightess of the Round Table

Here is some other “choice commentary” from Round Table members:

“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”

“Great job, Team!!  Let’s keep up this winning streak.”

“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“

“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right!  Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”

“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”

“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“

Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system! 

No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!

🇺🇸 Due Process Forever!

PWS

03-22-24

🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!

🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!

 

  1. Pastors Welcome Busses

Rebekah Barber reports for religionnews.com:

https://religionnews.com/2024/01/17/chicago-pastors-help-the-city-grapple-with-flood-of-migrants/

Chicago Pastors Welcome
Locals and migrants attend a banquet at First Presbyterian Church of Chicago on Nov. 30, 2023. (Photo by Max Li)

(RNS) — Chicago was already facing a homelessness crisis before Texas’ Republican governor, Greg Abbott, began directing thousands of migrants entering his state to Democratic bastions that had declared themselves migrant-friendly sanctuary cities.

Since the transfers began in April 2022, more than 20,000 migrants, many of them destitute Venezuelans, have arrived, and many Chicagoans have expressed concerns that the city’s resources are being drained and have accused government officials of failing to communicate about the migrants’ cost and their fates.

At the same time, advocates for the migrants, especially community organizers in more vulnerable neighborhoods, have pushed back against attempts to pit two marginalized groups against each other. These groups have stepped up to support the new arrivals and in many cases have found allies in local faith leaders.

. . . .

Black said the majority of community residents want to find a way to both support the migrants and build support for a part of Chicago that has been historically underserved and underresourced. At the banquet at First Presbyterian, a speaker from Southside Together Organizing for Power, a community organizing group, talked about what it means to have Black and brown unity.

“It’s basically founded on this idea that there’s no scarcity,” Black said. “Not only is there enough for everybody — for the asylum-seekers, and the historically disenfranchised populations of South Side Chicago.”

He added, “We have so much more to gain from our unity than from the division which is being manufactured and orchestrated by interests that don’t want these communities to get the resources they need.”

This article was produced as part of the RNS/Interfaith America Religion Journalism Fellowship.

2) GW Law Clinic Students Help New Arrivals

From Professor Alberto Benítez:

Newcomer Fair at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus

I report that today Immigration Clinic student-attorneys Raisa Shah, Jennifer Juang-Korol, and I participated in the Newcomer Fair that the District of Columbia Public Schools sponsored at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus, primarily Venezuelans living in DC shelters. We shared immigration and social services information, GW swag, and met lots of cute kids. We were the only law school that participated. Please see the attached. 

Professor Alberto Benitez
Professor Alberto Benítez & GW Immigration Clinic Student-Attorneys Raisa Shah & Jennifer Juang-Korol Staff The Table @ Newcomer Fair!

3) W&M Law Clinic Wins 27 Cases

Professor J. Nicole Medved reports on LinkedIn:

Over the holidays, the Immigration Clinic received approval notices in TWENTY-SEVEN applications that we’ve filed in the last calendar year. 🎉  Among those 27 approvals were approvals for #asylum, #lawfulpermanentresidency, #DACA, #TPS, and #workpermits. It has been so exciting to see–and share–the fantastic news with our clients, students, and alumni who worked on these cases!

Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)
Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)

4) NDPA Superstar Kim Williams Triumphs Over Garland DOJ’s “Nexus Nonsense” In 1st Cir

From Dan Kowalski @LexisNexis:

Major CA1 Victory: Pineda-Maldonado v. Garland

http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/major-ca1-victory-pineda-maldonado-v-garland

“Ricardo Jose Pineda-Maldonado (“Pineda-Maldonado”) is a native and citizen of El Salvador. He petitions for review of the decision by the Board of Immigration Appeals (“BIA”) that denied his application for asylum and claims for withholding of removal and protection under the Convention Against Torture (“CAT”). We grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this decision.”

[Please read the entire 31-page decision.  It is a solid beat-down for the IJ and the BIA.  Hats way off to Kim Williams and team!  Listen to the oral argument here.]

Kim Williams
Kim Williams, Esquire
Rubin Pomerleau PC
PHOTO: LinkedIn

5) HRF’s Robyn Barnard Calls Out Biden’s Threat To Trash Asylum

Robyn Barnard
Robyn Barnard
Associate Director of Refugee Advocacy
Human Rights First
PHOTO: Linkedin

Robyn writes on LinkedIn:

Have been thinking a lot about this statement & questioning how we got here. Anyone who works in this space knows just how complicated our laws & system are, the challenges global crises present, all compounded by recent attempts to totally destroy our immigration system. We know this is hard. However, the President has had at his service very smart ppl, experts, not to mention those in NGO space w decades of experience who have provided him reams of recommendation papers from before he was elected President, all wanting to help him to succeed at making the immigration system more efficient, more fair, but I’d guess most also came out of 4 yrs of Trump wanting to ensure we treat ppl w dignity & respect their basic human rights. If only he would listen.

How did the President go from vowing to “restore asylum” & “stop kids in cages” to essentially trying to out-Trump Trump? I wish we had a President who had the political courage to stand by immigrants, to stand in public & declare why detention, border walls, & summary deportations don’t work, & to invest in humane & smart solutions. The truly enraging thing about this is he will never win in his gross political posturing despite throwing migrants under the bus, or more aptly–literally to the cartels–the Right will never be satisfied & now he has put himself on record as in favor of Trump’s policies. 

Shame. Shame on whoever had a hand in this hateful declaration and shame on the leader who put his name to it.

6) CEO Bill Penzy Likes & Appreciates Immigrants

Penzys Logo
Penzys Logo
FROM: Facebook

Penzy, CEO of Penzy’s Spices in Wauwatosa, WI (my home town — graduated from Tosa East in ‘66) writes:

And despite all the Republican anger, it really is okay to say you like what immigrants do and have always done for this country. So much hard work. So much tasty food. What’s not to like? They need somewhere their hard work can amount to something, and we have plenty of space, and more work to do than we can do ourselves..

Immigrants give us the chance to be kind, decent humans. Let’s be kind, decent humans.

Thanks for caring enough to cook and caring about so much more.

You are awesome,

Bill
bill@penzeys.com

 ************************

Even in a time of “politicos’ bipartisan national fear-mongering, irresponsibility, and trashing of human rights,” courageous NDPA “freedom fighters” still stand up for human dignity and the right to asylum! 

Three cheers for the good guys! 📣📣📣

🇺🇸 Due Process Forever!

PWS

02-28-24

🗽⚖️ PROVING OUR POINT, AGAIN: “Sir Jeffrey” & I Have Been Ripping The Garland BIA’s Contrived “Any Reason To Deny” Misinterpretations Of Nexus & PSG — 1st Cir. Is Latest To Agree With Us! — Espinoza-Ochoa v. Garland

Kangaroos
Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community: 

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-psg-and-nexus-victory-at-ca1—espinoza-ochoa-v-garland

“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Randy Olen!]

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

You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:

🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

🤯 MISFIRES: MORE MIXED MOTIVE MISTAKES BY BIA — “Expert” Tribunal Continues Underperforming In Life Or Death Asylum Cases! — Sebastian-Sebastian v. Garland (6th Cir.) — Biden Administration’s “Solution” To Systemic Undergranting Of Asylum & Resulting EOIR Backlogs: Throw Victims Of “Unduly Restrictive Adjudication” Under The Bus! 🚌🤮

How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system. 

It makes cases like this — which could  and should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket. 

This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General. 

Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!

🇺🇸 Due Process Forever!

PWS

12-28-23

  

⚖️ HON. “SIR JEFFREY” CHASE MINES GOLDEN NUGGETS FROM SLURRY OF DENIAL! — VARELA-CHAVARRIA v. GARLAND — 1st Cir.

Panning for Gold
Hon. “Sir Jeffrey” Chase does the hard, dirty work of sifting through the legal muck for golden nuggets of hope and enlightenment!
“The First Pan”
By by W. Sihmedtgen.
Public Realm

“Sir Jeffrey” writes:

In spite of the petition being denied, there is useful language on what constitutes persecution for a child, and in fn 6 on an IJ’s obligation to assist in delineating a PSG, whether or not the applicant is pro se.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Read the full decision here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1780P-01A.pdf

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

Even when the final result passes Circuit review, the BIA’s too often sloppy “any reason to deny” approach should be of grave concern to all who advocate for due process and fundamental fairness for asylum seekers.

🇺🇸 Due Process Forever!

PWS

11-17-23

🗽⚖️ BIA CONTINUES TO STRUGGLE WITH STANDARDS — Fortunately, WilmerHale (Tasha H. Bahal), Round Table 🛡️, 1st Cir. There To Straighten Things Out! — Murillo Morocho v. Garland — With Commentary From Hon. “Sir Jeffrey” Chase!

Kangaroos
“We don’t need no stinkin’ standards except how high to jump for DHS enforcement!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community: 

http://media.ca1.uscourts.gov/pdf.opinions/22-1881P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-cat-standard-of-review-murillo-morocho-v-garland

“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”

[Hats off to Tasha J. Bahal!]

Tasha Bahal ESQ
Tasha J. Bahal
Counsel
WilmerHale

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

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

Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:

Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.

H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.

Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.

The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.

Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!

🇺🇸 Due Process Forever!

PWS

08-24-23

⚖️ I DISSENT FROM BIA’S (NON) GUIDANCE ON “UNDER COLOR OF LAW” FOR THOSE WHO SUFFERED TORTURE BY GOVERNMENT OFFICIALS IN MATTER OF J-G-R-, 23 I &N DEC. 733 (BIA 2023)

Star Chamber Justice
Unless you work at Merrick “Garland’s BIA, it would be reasonable to assume that torture by government officials is “under color of law!”

BIA HEADNOTE:

(1) Torturous conduct committed by a public official who is acting in an official capacity,” meaning acting under color of law, is covered by the regulations implementing the Convention Against Torture, but such conduct by an official who is not acting in an official capacity is not covered. Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020), followed.

(2) The key consideration in determining if an officials torturous conduct was undertaken in an official capacity” for purposes of CAT eligibility is whether the official was able to engage in the conduct because of his or her government position, or whether the official could have done so without connection to the government.

FOR THE RESPONDENT: Ethan R. Horowitz, Esquire, Lawrence, Massachusetts

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; CREPPY and HUNSUCKER; Appellate Immigration Judges.

MALPHRUS, Deputy Chief Appellate Immigration Judge:

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

SCHMIDT, RETIRED JUDGE OF THE ROUND TABLE, DISSENTING:

I dissent.

A far fairer, more logical, efficient, and uniformity-promoting solution is staring us in the face: An applicant who credibly establishes torture by a public official or officials should be entitled to a rebuttable presumption that the torture was inflicted “under color of law.” The DHS should then be required to establish by a preponderance of evidence that the official was acting in another capacity if it wishes to contest that presumption.

The information and evidence that might overcome a logical presumption that government officials act “under color of law” is much more likely to be available to the DHS than to the applicant. This is particularly true in the many cases where CAT applicants are detained, unrepresented, or both.

This rebuttable presumption would also, as a practical matter, close the gap between our interpretation and the rule in the Ninth Circuit which wisely recognizes no exceptions when torture is inflicted by government officials. See, e.g., Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017).

In adjudicating claims from individuals who have already suffered torture at the hands of government officials we must err on the side of protection, not rejection. The panel’s mushy guidance amounts to no practical guidance at all. It will certainly result in conflicting results, increased trial times and backlogs, arbitrary denials, and violations of due process. More backlog-promoting, avoidable Circuit Court remands are sure to follow.

Consequently, I dissent.

🇺🇸 Due Process Forever!

PWS

08-14-23

⚖️ LAW YOU CAN USE! — 1st Cir. & Hon. “Sir Jeffrey” Chase Combine To Provide Expert Guidance On How To Handle BIA’s Inexpert Treatment Of Experts! 👍🏼

 

Star Chamber Justice
Experts find the BIA’s treatment of expert witnesses to be unduly harsh!
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

https://www.jeffreyschase.com/blog/2023/7/28/expert-guidance-from-the-first-circuit-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Expert Guidance from the First Circuit

For Immigration Judges, country experts serve as the lens through which a confusing jumble of evidence becomes a clearer picture. No judge can be an expert on all countries; it is therefore by way of the country expert’s testimony that a determination can be made as to whether the asylum seeker’s predicament is a unique or a common one; a dispute is merely personal or possesses a political dimension; the home country’s government is truly likely to provide adequate protection; and why relocating within the country may or may not be reasonable.

However, Immigration Judges are provided remarkably little guidance on how to assess expert testimony. A 2020 decision of the U.S. Court of Appeals for the Ninth Circuit, Castillo v. Barr,1 illustrates the problem. In that case, both the Immigration Judge and the BIA chose to discount the testimony of a qualified country expert because his testimony was not corroborated by other evidence of record. As the Ninth Circuit noted, “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.”2 Obviously, this simple, logical rule should have been incorporated in a BIA precedent decision by now.

When attorneys SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire brought an appeal involving this issue with the U.S. Court of Appeals for the First Circuit, our Round Table of Former Immigration Judges was most happy to file an amicus brief in the matter. We used the opportunity to inform the court “how IJs and the BIA need, and lack, a clear standard for whether to admit—and how to weigh— expert evidence.”

Although the court issued an unpublished decision (and explained why it was precluded by Supreme Court precedent from establishing the uniform standard that we had requested), I believe the opinion offers wisdom on the topic that Immigration Judges might find useful in spite of its nonbinding nature. The case name is G.P. v. Garland, No. 21-2002 (1st Cir., July 13, 2023).

Rather than review the entire decision, in the hope of increased convenience, I have instead listed the issues raised in the case that are likely to arise in removal proceedings, and then summarized how the First Circuit addressed each issue.

The recency of the expert’s knowledge:

May an Immigration Judge discount an expert’s country knowledge as “stale” due to the passage of time since the expert’s last visit to the country in question or contact with its government’s officials?

In G.P., the court found no support for such approach where: (1) the record contained no evidence of changed conditions over the period of time in question; (2) the expert testified to the lack of significant changes in country conditions over that same time period; (3) such testimony regarding the lack of significant change went unchallenged by ICE, which did not call its own expert or offer other country evidence to the contrary; and (4) the conclusion was not contradicted by the petitioner.

The basis of the expert’s knowledge

Can an expert’s testimony be discounted for lack of firsthand “knowledge, research, or connections” to the country in question?

In G.P., the court pointed to the BIA’s own precedent decision in Matter of J-G-T- in which the Board adopted the Federal Rules of Evidence standard that an expert’s testimony is reliable when it is “`based on sufficient facts or data’ that the expert `has been made aware of or personally observed’ or from sources that `experts in the particular field would reasonably rely on.'”3

In addition to finding that the IJ had overlooked sources of firsthand knowledge, the court in G.P. found further error in the IJ’s failure to either mention or explain why sources that experts in the field would rely on that were mentioned by the expert in his voir dire, which included crime rates, DEA reports, and U.S. Department of State Country Reports, were not sufficient to credit the expert’s testimony.

The expert’s lack of personal knowledge of a specific criminal organization

Can an expert’s testimony be discredited where the expert lacked personal knowledge of the specific criminal organization that the applicant fears?

In G.P., the court found that the IJ erred in discounting the expert’s testimony for this reason. The court again referenced the Board’s statement in J-G-T- quoted above, and cited another BIA precedent, Matter of Vides Casanova, in which the Board held that an expert “need not have personal knowledge of the facts underlying” their opinion.4

Applying the above BIA guidance, the court observed that the expert witness learned specifics about the organization in question from reading the respondent’s affidavit, and importantly, that the facts contained in the respondent’s testimony and later testified to in court “were never challenged by the government or questioned by the IJ, who found G.P. credible.” The court added that “An expert cannot be ‘undermined by his reliance on facts . . . that have not been disputed’” (quoting from the Ninth Circuit’s decision in Castillo, supra at 1284).

The feared persecutors are based outside of the country of expertise

Can an expert’s testimony about a crime group based in the U.S. be discredited where the witness was qualified as an expert on organized crime in the Dominican Republic?

In G.P., although the group in question was based in New England, connected to a cartel based in Sinaloa, Mexico, and “served as a conduit between the Mexican drug cartels and customers in Northern New England,” the group did not fall outside of the witness’s area of expertise (i.e. organized crime in the Dominican Republic) where the expert testified to the Sinaloa Cartel’s strong presence in the Dominican Republic, influence over government officials there, and treatment of government cooperators.” The court therefore found that the IJ’s statement that the expert lacked direct knowledge of the criminal organization “mischaracterizes the evidence as a whole” and was not supported by substantial evidence of record.

Prior statements of the expert

How should a prior statement of the expert that is offered by ICE be treated by the IJ?

In G.P., ICE introduced a quote from the expert’s 2011 book in which he wrote that he “couldn’t honestly say that torture is something deportees [to the Dominican Republic] should expect.”

However, the First Circuit found error in the IJ’s reliance on the quote, because (1) the quote was in the context of an entirely different set of facts and employed a highly narrow definition of torture; (2) the expert was only asked whether he recalled the quote and to provide its context, and not whether he agreed with it; (3) the quote addressed the general risk of torture faced by deported noncitizens, and not the specific risk faced by G.P.; and (4) the IJ failed to explain why the 2011 book deserved significant weight when it was older than other evidence the IJ found to be stale.

Conclusion

Petitioner’s counsel has moved the First Circuit to publish the decision. But regardless of the outcome, counsel may wish to bring the court’s analysis to the attention of Immigration Judges, who in turn may find it highly useful in navigating the treatment of experts in cases before them.

– –

Hats off to SangYeob Kim and Gilles Bissonnette on their outstanding litigation in the First Circuit, which led to this satisfying decision. Our Round Table is most thankful to attorneys Adam Gershenson, Alex Robledo, Angela Dunning, Marc Suskin, Robby L.R. Saldaña, and Greg Merchant of the law firm of Cooley LLP, for their expert drafting of our amicus brief in this case.

Copyright 2023 by Jeffrey S. Chase. All Rights Reserved.

Notes

  1. 980 F.3d 1278 (9th Cir. 2020).
  2. Id. at 1284.
  3. Matter of J-G-T-, 28 I&N Dec. 97, 102 (BIA 2020) (quoting Fed. R. Evid. 702(b), 703).
  4. Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015). Interestingly, in VIdes Casanova, the country expert had been called by DHS to establish that the respondent was a persecutor of others. Under those circumstances, the BIA in its decision noted that an expert “is permitted to base her opinion on hearsay evidence and need not have personal knowledge of the facts underlying those opinions.”

JULY 28, 2023

Republished with permission

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

The BIA spends far too much time cooking up bogus ways to deny asylum and other forms of protection. This leaves a “vacuum” on providing sound advice and needed guidance for effectively presenting and fairly analyzing the large untapped potential for more grants of protection currently “bouncing around the EOIR backlog” or alternatively being mindlessly rushed through “dedicated deterrence dockets” with neither time for advocates to properly prepare nor opportunity for thoughtful analysis by IJs! It’s a real (totally preventable) “lose-lose” for our justice system and asylum applicants!

Fortunately those from outside EOIR, including Article III Judges, subject matter experts like Judge Sir Jeffrey, and his loyal colleagues in the Round Table 🛡 have stepped in to fill the void.  Wouldn’t it be better (and easier) to just aggressively recruit and hire the right expert, experienced, due-process-focused candidates for EOIR judgeships in the first place?

🇺🇸 Due Process Forever!

PWS

07-30-23

🌊 TSUNAMI OF BAD ☠️ BIA DECISIONS HITS GARLAND’S DOJ! — WRONG On Nexus (4th, 2-1); WRONG On NTA (4th, 2-1); WRONG On Agfel (8th); WRONG On Past Political Persecution In Cameroon (5th); WRONG On Experts (1st)!

Tsunami
Tsunami of bad BIA decisions hits as Garland ignores needed housecleaning and due process reforms @ EOIR!
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

1. NEXUS

CA4 on Nexus, Religious Persecution: Chicas-Machado v. Garland

https://www.ca4.uscourts.gov/opinions/211381.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-religious-persecution-chicas-machado-v-garland

“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”

[Hats off to Daniel Thomann!  Listen to the oral argument here.]

Daniel Thomann ESQ
Daniel Thomann
ESQ

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.comhttps://www.ca4.uscourts.gov/opinions/211381.P.pdf

2. NTA

CA4 on Defective NTA: Lazo-Gavidia v. Garland

https://www.ca4.uscourts.gov/opinions/202306.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-defective-nta-lazo-gavidia-v-garland

“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”

[Hats off to Glenn Fogle!  Listen to the oral argument here.]

Glenn Fogle ESQ
Glenn Fogle ESQ

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

3. AgFel

CA8 on Shoplifting: Thok v. Garland

http://media.ca8.uscourts.gov/opndir/23/07/222508P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca8-on-shoplifting-thok-v-garland

“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”

[Hats off to Jaime Arango!  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

4. Past Political Persecution In Cameroon

Unpub. CA5 Victory: Naah v. Garland

https://www.ca5.uscourts.gov/opinions/unpub/20/20-61059.0.pdf

“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”

[Hats off to Danielle Beach-Oswald!]

Danielle Beach-Oswald ESQ
Danielle Beach-Oswald ESQ

 

 

Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:

5. Experts

Unpublished 1st Cir. Victory [Experts]

[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!

More to follow. We continue to make a difference!

Best, Jeff

 

I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.

1st on Experts

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

Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?

In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process. 

As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.

Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.

Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!

As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.

If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!

“Catch 22” — the applicant loses either way!

Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.

The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!

Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”

Congrats, Danielle, and thanks for all you do!

Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system! 

What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?

🇺🇸 Due Process Forever!

PWS

07-14-23

☹️ WRONG AGAIN: 1st Cir. KO’s 🥊 BIA On Firearms! — Portillo v. DHS

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports for LexisNexis immigration:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-realistic-probability-portillo-v-dhs#

CA1 on Realistic Probability: Portillo v. DHS

May 31, 2023

(1 min read)

Portillo v. DHS

“Gerardo A. Portillo petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming his order of removal and denying his application for adjustment of status. Because we find that a conviction under Massachusetts General Laws (“MGL”) ch. 269, § 11C is not categorically a firearm offense as defined by 8 U.S.C. § 1227(a)(2)(C), we grant the petition for review, vacate the decision below, and remand for further proceedings. … Accordingly, without resorting to “legal imagination,” we conclude that MGL ch. 269, § 11C sweeps more broadly than the federal offense, and Portillo need not produce an actual case to demonstrate that overbreadth. … For the reasons stated above, we grant the petition for review, vacate the BIA’s opinion, and remand for further proceedings consistent with this decision.”

[Hats off to Jennifer Klein, Susan Brooks Church and Kathleen Marie Gillespie!  Audio of the oral argument here.]

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

Congrats to the NDPA “litigation team” of Klein, Church, & Gillespie!

Notably, the unanimous 1st Circuit did a detailed 24-page analysis to get this one right. This is the type of scholarship and effort one might expect, but doesn’t consistently get, from the BIA.

Remarkably, this case has now been pending for more than six years at EOIR. Now, largely as a consequence of EOIR’s, toxic “how can we get to no” bias, present over the past several Administrations, it’s back to “square one” with no end in sight.

THAT’S how a system builds uncontrollable backlog! Maybe pruning out the “deadwood” and bringing in “practical scholar-experts” as judges at the appellate and trial levels wouldn’t solve all the problems that have been building up for decades at EOIR. But, it sure would be a great start on a better future!

🇺🇸 Due Process Forever!

PWS

06-05-23

☠️🤮🤯 HOW CAN JUDGES WHO DON’T KNOW WHAT TORTURE IS FAIRLY PREDICT ITS FUTURE PROBABILITY? — THEY CAN’T! — 1st Cir. “Outs” EOIR’s CAT Denial Conveyor Belt!

Torture
“Just a little unpleasantness, harassment, and even basic suffering,” nothing to worry about, say Garland’s EOIR judges! Too many EOIR judges still operate in an “alternate reality” where legal rules, humanity, logic, and common sense are suspended!
Wood engraving by A.F. Pannemaker after B. Castelli. Creative Commons Attribution 4.0 International license.

Hernandez-Martinez v. Garland, 1st Cir.

http://media.ca1.uscourts.gov/pdf.opinions/21-1448P-01A.pdf

. . . .

In March 2014, Hernandez-Martinez was on his way to work when two men approached him, demanding money and threatening to kill him if he did not pay. Hernandez-Martinez did not know who the men were. The men told him that they knew where he lived and would harm him or his wife if he did not comply. They also instructed him not to go to the police.

Hernandez-Martinez went to the police later that day. Two police officers told Hernandez-Martinez not to be afraid because they would “take matters into their own hands,” and they offered to drive him home. Instead, they delivered him to the men who had threatened him earlier. The men hit Hernandez-Martinez in the face, cut his waist with a knife, burned his right foot with motorcycle exhaust, dragged him, repeated their threats, and beat him senseless. The police appeared to know his assailants and laughed while the men were assaulting him. Hernandez-Martinez recovered consciousness in a hospital, where he stayed for three or four days. When he had sufficiently recovered, he promptly fled to the United States to join his wife and then four- or five- year-old son, who had already made the journey.

. . . .

The IJ’s reasons are not at all clear. She more or less simply stated the elements of a CAT claim and asserted that Hernandez-Martinez did not establish those elements without specifying which elements were found wanting, or why.2 In addressing the asylum claim, the IJ did comment on the severity of harm inflicted on Hernandez-Martinez, stating that the abuse he suffered did not “rise above the level of unpleasantness, harassment, and even basic suffering.” We agree with the government that were this a supportable description of the harm inflicted, it would not support a CAT claim. We disagree, though, that the facts found support such a description. More to the point, as a matter of law we reject the implicit claim that the harm visited upon Hernandez-Martinez was not severe enough to qualify as torture.

. . . .

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It’s actually pretty hard to get a “rise to the level of torture” case wrong as a matter of law! But three levels of Garland’s DOJ managed to pull it off! 

EOIR’s “holdover Ashcroft/Sessions/Barr era” deny every CAT claim approach seems to be running into problems in the “real” Federal Courts. Nothing that competent BIA Appellate Judges couldn’t solve. But, don’t hold your breath!

This absurdist CAT “adjudication” and its beyond absurd, unethical defense by OIL (“doesn’t even rise to the level of persecution,“ citing inapposite cases, gimmie a break) falls below minimum legal and professional standards in every conceivable way: at the IJ, the BIA (“summary affirmance”), and OIL!

That nearing the halfway point of the Biden Administration there is no Senate-confirmed Assistant AG running the all-important Civil Division, which supervises OIL, shows just how grossly deficient and indolent Dems’ approach to “justice at Justice” has been — both within the Biden Administration and in the Senate.

This stunningly defective, shallow, basically non-existent “analysis” by this IJ shows an out of control system where judges feel free to enter defective deportation orders in life or death cases without much thought and without fearing any accountability from the BIA. The latter obviously is an “any reason to deny” assembly line where clearly unacceptable performance by IJs is “rubber stamped” so long as the result is “deny and deport!”

What’s happening at Garland’s EOIR is analogous to  a patient going into the hospital for knee replacement, getting a lobotomy by mistake, and dying to boot. Yet, the “hospital administrator “ shrugs it off as just “business as usual,” a “minor mistake” — “good enough for surgery” and lets the team of quacks keep operating and killing folks!

Gosh, even lesser legal luminaries like Gonzalez and Mukasey finally “got” that EOIR was totally out of control and off the wall in the aftermath of Ashcroft’s “due process purge” and  mal-administration. They actually took some “corrective action,” even if largely ineffectual and mostly cosmetic.

It’s also no accident that a disproportionate amount of EOIR’s bad judging and docket mismanagement is inflicted on migrants of color, particularly those from Latin America and Haiti, and their representatives.  Much as the Biden Administration tries to ignore it, there is a clear connection between institutionalized xenophobia and racial bias in our immigration system and the problematic state of racial justice elsewhere in the U.S.

Contrast the truly abysmal, unacceptable performance by the EOIR judges and OIL attorneys in this case with the outstanding performance of Judge Brea Burgie and private attorney Alexandra Katsiaficas in the asylum grant from Denver I highlighted yesterday. https://immigrationcourtside.com/2023/02/06/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%a7%91%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a9%f0%9f%92%bc-modeling-eoirs-potential-in-denver-judge-brea-c-burgie-attorne/.

Obviously, there is expert judicial talent on the EOIR bench and in the private sector that could be recruited and elevated to fuel a “due process, great judging, and best practices renaissance” in this dysfunctional, inherently unfair, and grotesquely mal-administered system! But, equal justice and minimal professional standards at EOIR can’t wait! Lives are going down the drain, and wasteful corrections and “Aimless Docket Reshuffling” further cripple this already “rock bottom” system every day.

Garland must finally “swap out the deadwood and under-performers” at the BIA and senior management at EOIR HQ in Falls Church. He needs to bring in the available,  proven talent from both Government and the private sector to lead and guide his mockery of a court system back to at least a minimal level of competence, professionalism, and accountability.

It’s well within Garland’s authority to “end this disreputable, deadly ‘clown show’ at EOIR!” Dems both inside and outside Government should be demanding reforms and accountability!

🇺🇸 Due Process Forever!

PWS

02-07-23

 

☠️ GARLAND’S QUASI-JUDICIAL TORTURE CHAMBERS — FROM COAST TO COAST, EOIR APPLIES WRONG LEGAL STANDARDS, IGNORES EVIDENCE IN EFFORT TO ILLEGALLY SEND PEOPLE TO TORTURE!  

Star Chamber Justice
If he survives Garland’s EOIR, this guy faces more torture if wrongfully removed to torture elsewhere. “Justice”
Star Chamber
Style

“Sir Jeffrey” Chase reports on H.H. v. Garland, a case in which the Round Table filed an amicus brief in behalf of the respondent. Many thanks to our friends Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, Samantha Kirby, and Cooley LLP on the brief for amici curiae Former Immigration Judges and Former Members of the Board of Immigration Appeals.

H.H. V. Garland

 

For the reasons detailed above, we conclude that the BIA erred by: (1) applying the incorrect standard of review to uphold the IJ’s denial of CAT relief as to Honduras, in a misguided effort to accommodate the IJ’s error of law in requiring a showing of willful acceptance rather than willful blindness; (2) improperly failing to address H.H.’s argument that he would likely be tortured by or at the instigation of Honduran officials; and (3) failing to meaningfully address H.H.’s argument that MS-13 members may act under color of law.21 Accordingly, we grant the petition for review, vacate the BIA’s decision insofar as it denied H.H. deferral of removal to Honduras, and remand the case for further proceedings consistent with this opinion.

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

Meanwhile, Dan Kowalski at LexisNexis Immigraton Community reports on another CAT rebuke from the 9th Circuit. 

CA9 on CAT, Guatemala: De Leon Lopez v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/21/20-71529.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-cat-guatemala-de-leon-lopez-v-garland#

“Risvin Valdemar De Leon Lopez (“De Leon”), a native and citizen of Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) order denying his application for relief under the Convention Against Torture. We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.”

[Hats off to Karla Kraus!]

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

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

Almost every time I “feature” the ongoing legal and operational disaster @ EOIR, Garland furnishes me with concrete examples. https://immigrationcourtside.com/2022/10/22/%e2%98%a0%ef%b8%8f%e2%9a%b0%ef%b8%8f%f0%9f%92%80garlands-star-chambers-slow-violence-on-people-of-color%f0%9f%a5%b5-bias-bad-law-bungling-bureaucracy/

These are two “doozies” from last Friday!

These aren’t “minor bureaucratic matters,” no matter how much Garland and his “clueless crew” over @ DOJ might want to treat them that way and hope they will go away! They won’t! Not if the thousands of us involved in the due process, fundamental fairness, and racial justice for all movement have anything to say about it (e.g., the “NDPA”)!

And we will continue to speak out against the parody of justice @ Garland’s EOIR! It’s a disingenuous and disgraceful performance by a Democratic Administration that will have “down the line” consequences! 

While the Trump Administration admittedly left EOIR in complete shambles, that doesn’t excuse the Biden Administration’s failure to fix it. It’s not “rocket science!”  But, there is no way that the “Clown Show” 🤡 that Garland has chosen to run and staff EOIR (many inexplicably “held over” from the Sessions/Barr debacle) can fix it!

These are literally life and death cases in which Garland’s “faux expert” BIA “pretzels” the law, misconstrues facts, and “selectively reads” records to reach wrong results that deny protection and decree deportation! How is this acceptable performance from any tribunal, let alone one that is supposed to insure justice for those whose lives are on the line? How is this acceptable performance from a Democratic Administration that claimed fealty to human rights and racial justice, but takes neither seriously when it comes to EOIR?

There are plenty of “practical scholar experts” out here in the non-governmental sectors who would make much better appellate and trial judges, and administrators, than many of those Garland is inflicting on migrants and their attorneys. 

What’s wrong with the Biden Administration? What’s “right”  about failed justice @ Justice?” 

The poor performance of Garland as the “steward” of the Immigration Courts at EOIR is a threat to humanity, democracy, and a colossal waste of judicial and litigation resources at all levels of our justice system!

Alfred E. Neumann
Maybe Merrick Garland SHOULD worry about running “America’s worst courts” and inflicting life-threatening injustice on his fellow humans!
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

10-23-22

🏴‍☠️“ANY REASON TO DENY”🤮 — GARLAND BIA’S BIASED, ANTI-ASYLUM JURISPRUDENCE CONTINUES TO GARNER PUSHBACK FROM ARTICLE III’s — Dem AG Needs To Pay Attention To Assault On Democracy, Rule Of Law Taking Place In HIS Dysfunctional “Courts!” — Garland Reportedly Plans More Backlog-Building, Due-Process-Denying “Aimless Docket Reshuffling” (“ADR”)!

Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-credibility-cat-njoka-v-garland

CA3 on Credibility, CAT: Njoka v. Garland

Njoka v. Garland (unpub.)

“[W]e conclude that the Board erred in affirming the IJ’s denial of CAT protection. The Board’s sole justification for that affirmance was the adverse credibility finding. The Board suggested that, under Fifth Circuit precedent, an adverse credibility finding defeats a claim for CAT protection. See Ghotra v. Whitaker, 912 F.3d 284, 289 (5th Cir. 2019). But under the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection.1 Ibarra Chevez v. Garland, 31 F.4th 279, 288 (4th Cir. 2022); see Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (“Because there is no subjective component for granting relief under the CAT, the adverse credibility determination on which the IJ relied to deny [the petitioner’s] asylum claim would not necessarily defeat her CAT claim.”). The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.2 See Camara, 378 F.3d at 371-72. Because the Board did not fulfill that duty, we will grant the petition for review in part and remand for the Board to do so.”

[Hats off to Rajan O. Dhungana!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-interpol-red-notice-cat-gonzalez-castillo-v-garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

Gonzalez-Castillo v. Garland

“Petitioner Oscar Gonzalez-Castillo was found to be ineligible for withholding of removal by an Immigration Judge (“IJ”) because there were “serious reasons to believe that [he] committed a serious nonpolitical crime” in his home country of El Salvador. 8 U.S.C. § 1231(b)(3)(B)(iii). The government only presented one piece of evidence supporting application of the serious nonpolitical crime bar, however. It was an INTERPOL Red Notice, described at greater length below. The Red Notice accused Gonzalez-Castillo of committing “strikes” on behalf of the gang MS13, allegedly committed on a date when Gonzalez-Castillo was in the United States rather than in El Salvador, based on the date of entry found by the IJ. We conclude that substantial evidence does not support the IJ’s finding, affirmed by the Board of Immigration Appeals (“BIA”), that Gonzalez-Castillo is ineligible for withholding of removal based on the serious nonpolitical crime bar. This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause. The allocation of the burden of proof in immigration proceedings does not change this outcome. We accordingly grant Gonzalez-Castillo’s petition for review in part and remand to the agency to consider whether Gonzalez-Castillo is eligible for withholding of removal. We also grant the petition as to his claim under the Convention Against Torture (“CAT”), because the record reflects that the agency failed to consider all of Gonzalez-Castillo’s testimony and statements about the harms he suffered in El Salvador at the hands of state actors, so we remand for more complete consideration of the CAT claim. We are not persuaded, however, by arguments in the petition for review challenging the evaluation of evidence that was discussed or by the argument that that the IJ failed sufficiently to develop the record. We dismiss the petition in part as to his claim for asylum, because the arguments Gonzalez-Castillo raises on appeal with respect to the one-year bar for asylum relief were not exhausted before the BIA.”

[Hats off to Amalia Wille (argued) and Judah Lakin, Attorneys; Nicole Conrad and Joya Manjur, Certified Law Students; University of California, Berkeley School of Law, Berkeley, California; for Petitioner, and John P. Elwood, Kaitlin Konkel, and Sean A. Mirski, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amicus Curiae Fair Trials Americas!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-credibility-changed-conditions-sikhs-in-india—singh-v-garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

Singh v. Garland

“We have held that the Board of Immigration Appeals (BIA) may rely on a prior adverse credibility determination to deny a motion to reopen if that earlier finding factually undercuts the petitioner’s new argument. Greenwood v. Garland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does not mean the BIA can deny a motion to reopen just because that motion touches upon the same claim or subject matter as the previous adverse credibility finding. Here, Rupinder Singh submitted new evidence about religious persecution independent of the prior adverse finding. The BIA thus erred in holding that the earlier adverse credibility finding barred Singh’s motion to reopen. The BIA also erroneously concluded that Singh failed to show that the conditions for Sikhs in India changed qualitatively since his last hearing. Clear evidence shows the contrary. We thus grant the petition and remand.”

[Hats off to Garish Sarin!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-abuse-of-discretion-rivera-medrano-v-garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

Rivera-Medrano v. Garland

“Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge (“IJ”) based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings. … The BIA’s oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation.”

[Hats off to SangYeob Kim, Gilles Bissonnette and Henry Klementowicz!]

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President Biden is correct that Trump and his MAGA GOP are the biggest threat to American democracy. But, “Dred Scottification,” systemic denial of due process, and racial injustice still running rampant in Immigration “Courts” under a Democratic Administration is right up there as an existential threat!

Additionally, I’ve been getting reports this week from practitioners in various locations that EOIR is embarking on yet another mindless, ill-informed round of “Aimless Docket Reshuffling” — guaranteed to increase backlogs, decrease effective representation, and spew out more unprofessional and unjust results. 

Once more, this inane initiative appears to have been undertaken with neither advance input from, nor sufficient notice to, those most affected — respondents and their attorneys! Same old, same old! This must stop!

Enough, already! Why aren’t all the “movers and shakers” of American law lined up in front of Garland’s Office demanding that he end the assault on our Constitution, common sense, good government, and human decency that unfolds every day in the disgracefully dysfunctional parody of a “court” system that is his sole responsibility!

The bar and NGO communities have to fight Garland’s assault on due process and good government with every available tool!

🇺🇸Due Process Forever!

PWS

00-02-22

🛡⚔️THE ROUND TABLE RIDES AGAIN! — INJECTING A DOSE OF REALITY INTO 1ST CIR. LITIGATION — No, “Briefing Completed” Doesn’t Mean That A BIA Decision Is Imminent — With An 80K+ Appellate Backlog, No Leadership, No Coherent Plan, Many Appellate Judges “Programmed To View Only Removals With Urgency,” & “Priorities” That Change On Political Whim, It’s A Grave Mistake To View EOIR “Through The Lens Of A ‘Normal’ Court System!”  🤯

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

“Sir Jeffrey Chase forwards our Round Table’s latest effort to promote reality, reasonableness, and due process in EOIR’s dysfunctional world:

Amici curiae are 38 former immigration judges (““IJs””) and members of the 2

Board of Immigration Appeals (““BIA””).2
Amici have dedicated their careers to improving the fairness and efficiency of

the United States immigration system, and have an interest in this case based on their combined centuries of experience administering the immigration laws of the United States. Amici collectively have presided over thousands of removal proceedings and thousands of bond hearings in connection with those proceedings, and have adjudicated numerous appeals to the BIA.

In denying Anderson Alphonse’’s (““Mr. Alphonse”” or ““Petitioner””) petition for writ of habeas corpus, the United States District Court for the District of Massachusetts (Saylor, J.), relied in part on the premise that it was ““readily foreseeable that proceedings will conclude in the near future”” because Mr. Alphonse’’s appeal to the BIA was ““fully briefed.”” This premise—at best aspirational when made in January 2022—has proven erroneous: nearly six months later, Mr. Alphonse’’s BIA appeal remains undecided. This is, regrettably, unsurprising given the surging caseload in the immigration courts, which now exceeds 1.8 million

1
1Amici state that this brief was not authored in whole or in part by counsel for any

party, and no person or entity other than Amici or their counsel made a monetary contribution to fund the preparation or submission of this brief.

2
2 See the appendix for a complete list of signatories.

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1

Case: 22-1151 Document: 00117894678 Page: 10 Date Filed: 07/05/2022 Entry ID: 6505717

pending cases. This crushing backlog—adding significantly to the backlog facing the BIA—-iis extremely relevant to the question of when a removal proceeding is likely to conclude. In fact, it might be the most important factor in this equation. Yet this factor is absent from the First Circuit’’s current analytical framework, opening the door to erroneous suppositions and conclusions based on a cursory review of a removal proceeding’’s posture, such as the one made by the District Court here.

Thus, Amici write to respectfully urge the Court to reassess the impact the backlog of cases facing the immigration courts may have on the ability of courts to accurately forecast when removal proceedings will conclude. Given their extensive experience with the immigration courts and BIA appeal process, Amici are uniquely positioned to provide insight into this narrow, but critical, issue.

The case is Alphonse v. Moniz, currently pending in the 1st Cir. Here’s a complete copy of our brief:

Round Table – Alphonse (1st Cir) FILED Amicus Brief – 7.5.22

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Many thanks to our wonderful pro bono counsel Matthew Levitt and Evan Piercy at MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. 

Although BIA decisions, particularly in non-detained cases, might take many months or even years to decide, the appellant is given only a relatively short period of time to file a brief — 21 days. A single 21 day extension may be requested and is usually granted, although it is common for the appellant not to be notified that the extension has been granted until after the extension period has expired.

Requests for additional or longer extensions are rarely granted. Motions to accept late-filed briefs, even those only a day or two tardy, are often denied. On the other hand, failure to file a timely brief after requesting a briefing schedule is a potential ground for summary dismissal of an appeal regardless of the merits! 8 C.F.R. § 1003.1(d)(2)(i)(E).

These rigid procedures might give the false impression that the EOIR system is driven by a sense of urgency in dispensing justice. Additionally, BIA and AG decisions often disingenuously pontificate about the supposedly “critical importance” of finality in immigration decisions. It’s all BS!

As you might note, the only “urgency” at EOIR is the potentially severe consequences imposed on the appealing party, usually the migrant. One the “compressed briefing” is complete, there is no particular assurance that the appeal will be decided on the merits for months, years — or ever! Additionally, the BIA can sometimes make dismissal of an appeal easier by ignoring an untimely brief or even by summarily dismissing an appeal for failure to file a brief without dealing with the merits.

Moreover, the hopelessness of the 1.82 million case EOIR backlog and the “assembly line justice” encouraged by EOIR’s “political masters” at DOJ results in a sloppy, “haste makes waste” approach to “justice.” This, in turn, means wrongful removals or unnecessary “remands” from Circuit Courts.

But, not to worry — there is neither penalty nor accountability for the BIA’s poor performance. Wrongly deported individuals are “out of sight, out of mind” — assuming they are even still alive.

Moreover, court remands actually give the BIA unlimited opportunities to correct their sloppy and unprofessional work, often with the benefit of a more thoughtful analysis from the Circuit Court. Not that such beneficial treatment by the Circuit necessarily means the BIA will get it right on remand. The BIA has been known to get “chewed out” by Circuit Courts for ignoring or “blowing off” their mandates.

“Red flags” 🚩 should be popping up all over the Falls Church horizon — so big that even the often “asleep at the wheel” immigration policy folks at the Biden Administration can see them! But, don’t hold your breath! Our Round Table, however, will continue “speaking truth to power” and revealing the real, awful due process mess at EOIR.

The respondent in this case is ably represented by Associate Dean Mary Holper of Boston College Law and her Immigration Clinic. In a way, this is a classic illustration of why Garland has been unable to fix EOIR. Dean Holper is an accomplished, universally-respected litigator, teacher, writer, practical scholar, and administrator. She is exactly the type of NDPA All-Star/Expert whom Garland should have recruited on “Day 1,” brought in, and empowered to fix EOIR and reinstate and realize its due process mission. Instead, Garland’s EOIR continues to flail and fail while the talent who could fix it are lined up in court against him!

🇺🇸Due Process Forever!

PWS

07-18-22

🏴‍☠️“ANY REASON TO DENY ASYLUM” BIA HITS ROUGH SLEDDING FROM COAST TO COAST — 1st Cir. (Bogus Adverse Credibility) & 9th Cir. (Ludicrous “Not Persecution” Finding) — But, EOIR’s “Asylum Denial Assembly Line” Wins Love From Trumpy 9th Cir. Judge!

 

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-persecution-nicaragua-flores-molina-v-garland-2-1

CA9 on Persecution, Nicaragua: Flores Molina v. Garland (2-1)

Flores Molina v. Garland

“Petitioner Mario Rajib Flores Molina (“Flores Molina”) participated in demonstrations against the ruling regime in his native Nicaragua, where he witnessed the murder of his friend and fellow protester by police and paramilitary members. Thereafter, he was publicly marked as a terrorist, threatened with torture and death by government operatives, and forced to flee his home. Flores Molina, however, was tracked down at his hideaway by armed paramilitary members, and was forced to flee for his life a second time. Flores Molina still was not safe. He was discovered, yet again, assaulted, and threatened with death by a government-aligned group. Flores Molina ultimately fled a third time— from Nicaragua altogether—out of fear for his safety. He eventually presented himself to authorities at the United States border and sought asylum and other relief. When Flores Molina sought asylum, withholding of removal and protection under the Convention Against Torture (“CAT”), an Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) determined that his past experiences in Nicaragua did not rise to the level of persecution. They also determined that Flores Molina did not establish a well-founded fear of future persecution. The IJ and BIA denied all forms of relief and ordered Flores Molina’s removal to Nicaragua. Flores Molina petitions for review of the BIA’s denial of his appeal of the IJ’s decision, as well as of the BIA’s subsequent denial of his motion to reopen proceedings. Because the record compels a finding that Flores Molina’s past experiences constitute persecution and because the BIA erred in its analysis of the other issues, we grant the first petition and remand for further proceedings. Accordingly, we dismiss the second petition as moot.

[Hats off to Mary-Christine Sungaila (argued) and Joshua R. Ostrer, Buchalter APC, Irvine, California; Paula M. Mitchell, Attorney; Tina Kuang (argued) and Natalie Kalbakian (argued), Certified Law Students, Loyola Law School!]

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EOIR’s deadly, incorrect approach to sending refugees back to face persecution is legally incorrect, factually erroneous, and morally bankrupt. But, it does have one huge fan. Recently appointed Trump Ninth Circuit Judge Lawrence VanDyke: 

In the Immigration and Nationality Act (INA), Congress codified the highly deferential substantial evidence test and established what should be our court’s guiding star in the review of immigration decisions: that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B) (codified as 8 U.S.C. § 1252(b)(4)(B) (emphasis added)). Congress later amended the INA by passing the REAL ID Act, further reining in our role and discretion as a reviewing court and stripping federal courts of jurisdiction to hear certain immigration claims. See Nasrallah v. Barr, 140 S. Ct. 1683, 1698 (2020) (Thomas, J., dissenting). Over time, however, this court’s decisions have chipped away at these statutory standards—broadening the scope and standard of our review far beyond the limited and deferential posture that Congress unmistakably set out in the INA. See id.

To properly apply our deferential standard of review, we are supposed to scour the record to answer a single question: could any reasonable adjudicator have agreed with the agency’s result, or does the record as a whole compel a different conclusion? See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (explaining that substantial evidence review requires that we review “the record considered as a whole” and reverse the agency only if no reasonable factfinder could agree with its conclusion); see also Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (describing Elias-Zacarias as “the touchstone” and “definitive statement of ‘substantial evidence’ in the context of . . . factual determinations in asylum cases”). On its face, this is an exceptionally deferential standard of review. But there’s more.

“Scour the record” to defeat asylum claims that should have been granted below, huh? That clearly defective, biased, one-sided approach is “due process and fundamental fairness” for a “person” under our Constitution? Or maybe asylum seekers of color aren’t “persons” to VanDyke and his righty cronies? That’s how VanDyke would like the Constitution applied if his life were at stake?

He’d like to use legal mumbo-jumbo to allow refugees to have their lives ended or threatened by non-expert decision makers making it up as the go along to deny meritorious claims. Under his “standard of review,” judicial review would be no review at all. Just scour the record for any obscure reason to deny asylum or, failing that, just make one up. Doesn’t matter as long as the individual loses and gets removed! That’s pretty much what too many EOIR judges and BIA “panels” (which can be a single judge) are already doing. Why add another layer of intellectual dishonesty, moral corruption,  and absence of judicial ethics to the mess?

Mr. Flores-Molina is not buy any means the only one subjected to Judge VanDyke’s loony right-wing legal nonsense.  You can “meet” the judge right here:

https://newrepublic.com/article/165169/lawrence-vandyke-judge-ninth-circuit-appeals-trump-bonkers-opinions

“The Rude Trump Judge Who’s Writing the Most Bonkers Opinions in America.”

One might legitimately ask why already vulnerable asylum seekers and their courageous lawyers are being subjected to such judicial abuse at all levels of our system. Why doesn’t Garland just appoint “real, expert, fair EOIR Judges” who will do the right thing at the “retail level” without having to enter the “appellate circus” 🤡 that Trump and the GOP have created?

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-credibility-reyes-pujols-v-garland

CA1 on Credibility: Reyes Pujols v. Garland

Reyes Pujols v. Garland

“[T]he BIA upheld an adverse credibility determination that the IJ reached in part based on an inconsistency in Reyes’s story that simply was not an inconsistency. Nor can we say that absent the adverse credibility finding, Reyes’s CAT claim would necessarily fail. We therefore must vacate the BIA’s ruling affirming the IJ’s denial of that claim. …  Reyes’s petition for review is granted, the ruling of the BIA is vacated, and we remand for further proceedings consistent with this opinion.”

[Hats off to Ethan Horowitz!]

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REALITY CHECK: 

Here’s a key sentence from the preamble to the L.A. Declaration on Migration and Protection:

We are committed to protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers, and displaced and stateless persons regardless of their migratory status.

So I’d like to know how the following fit within our solemn commitment to “protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers?”

  • Falsely finding that systematic assaults, death threats, being driven from your home, and being tracked down after fleeing, carried out by a Nicaraguan Government so repressive that it wasn’t even invited to the L.A. Conference, do not constitute persecution; and
  • Inventing a bogus inconsistency in an asylum seeker’s testimony and using it to wrongfully deny asylum.

Clearly they don’t! And, this kind of official misconduct goes on somewhere at EOIR on both levels every day! Just ask any experienced asylum practitioner! So, why hasn’t Garland replaced the EOIR judges who are not qualified to be deciding asylum claims with readily available expert talent? 

Asylum seekers face systematically unfair treatment by “judges” who serve at Garland’s pleasure. Many of those judges, particularly at the BIA, were appointed or “elevated” by Garland’s openly xenophobic, virulently anti-asylum predecessors during the Trump regime. Yet, inexplicably, they continue to inflict bad decisions and sloppy, legally defective, morally vapid work on the most vulnerable? Why?

What if we had an expert, due-process-oriented Immigration Court that uniformly interpreted asylum law correctly and actually granted much-needed and well-deserved protection? What if asylum seekers didn’t have to enter the “Circuit Court crap shoot” — or deal with bad “no review is judicial review” judges like Judge VanDyke — to get life-saving justice? What if the rule of law and human rights were honored and advanced in Immigration Court rather than being mocked and disparaged? What if Immigration Courts modeled good judicial behavior instead of operating as a shockingly dysfunctional parody of due process, fundamental fairness, and best practices?

Wouldn’t it be better for everyone?

Perhaps there is some modest movement in the right direction. I’ve received reports from at least two Immigration Courts that unqualified Trump-era appointees have been removed over over the past week. That’s a start! But, it will take lots more “removals or reassignments” and a complete “redo” of the mal-functioning BIA to get due process, expertise, fundamental fairness, and best (as opposed to worst) judicial practices back on track at EOIR!

🇺🇸Due Process Forever!

PWS

06-16-22

🙁“CAT-ASTROPHE” — GARLAND’S EOIR FLUNKS “CAT 101” — Coast-to-Coast Failures in 9th and 1st Cir Show A “Judiciary” With Life or Death ☠️ Authority Lacking In Basic Legal Skills & Competence!🤮 

Bob Egelko
Bob Egelko
Courts Reporter
SF Chronicle
PHOTO: SF Chron

Bob Egelko reports for the SF Chron:

An immigration judge ordered a gay Nigerian man deported over a minor discrepancy. The Ninth Circuit just reversed in a fiery ruling https://www.sfchronicle.com/bayarea/article/An-immigration-judge-ordered-a-gay-Nigerian-man-17151459.php

When a local security brigade in Nigeria learned Peter Udo and his boyfriend were seen having sex in a hotel room, they seized and beat the couple for six hours and later told Udo he should be put to death.

Udo’s mother used her family savings to enable him to flee the country and he wound up in California, where an immigration judge rejected his plea for asylum and ordered him deported because his description of the events gave a false name for the hotel where he had been captured. That order has now been firmly rejected by a federal appeals court.

The judge and the Board of Immigration Appeals, which upheld the deportation order, failed to give any “reasoned consideration” to the evidence Udo presented, the Ninth U.S. Circuit Court of Appeals in San Francisco said Wednesday in a ruling requiring the board to review his claim that he would be tortured if returned to Nigeria.

That evidence included an “excommunication notice,” signed by leaders of the community’s Council of Traditional Rulers, notifying Udo and his family that anyone engaging in homosexual acts is “subjected to public execution” and that his mother and five other relatives were no longer considered citizens of the community.

“Remarkably, the (Board of Immigration Appeals) did not reference the excommunication notice at all” in its ruling that would have returned Udo to Nigeria, Judge M. Margaret McKeown said in the appeals court’s 3-0 decision, which included a copy of the notice.

Udo’s lawyer, David Casarrubias, said the ruling was a victory for asylum seekers.

“The opinion stands for the proposition that although Congress may enact laws that make it harder for asylum seekers to prevail as a result of minor discrepancies in their applications, there are other international laws like the Convention Against Torture that still have teeth,” Casarrubias said.

. . . . .

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Read the rest of Bob’s article at the link.

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And things are just as bad on the other side of the country. Here’s what the 1st Circuit had to say about the latest mis-step from Garland’s “Star Chambers” on a life or death CAT matter:

http://media.ca1.uscourts.gov/pdf.opinions/21-1296P-01A.pdf

. . . . 

The government does again urge us to construe the BIA as having merely affirmed a finding that it attributed to the IJ

10 For this reason, we need not resolve whether, as Ali contends, the IJ violated 8 C.F.R. § 1208.16(c)(3) by failing to consider all relevant evidence through the way the IJ treated the evidence from Harper in her testimony and March 2020 declaration that bears on Ali’s “security forces”-related ground for CAT-based deferral of removal.

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regarding whether it was “more likely than not” that Ali would be subject to abuse severe enough to constitute torture rather than a finding that it attributed to the IJ regarding the limited severity of the abuse that Ali had shown that he was likely to suffer. But, as we explained in connection with Ali’s challenge to the BIA’s “other private actors”-related ruling, the IJ did not make that finding either. And, in any event, as we have noted, that is a strained reading of the BIA’s opinion, given that the opinion expressly quotes only from the portion of the relevant regulations that purports to define how severe abuse must be to constitute torture, see 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman treatment . . . .”), rather than a regulation concerning how “likely” it must be that the noncitizen will be subjected to abuse that is severe enough to constitute torture, see, e.g., id. §§ 1208.16(c)(2), (4).11

Finally, the government contends that we still must affirm the BIA’s ruling because, although Harper described violence, “she did not describe the injuries to the Somalis she

11 To the extent that the government means to argue here, too, that the BIA itself considered the Harper evidence in question because of the portion of the BIA’s opinion in which the BIA states, “after considering the risk of torture from all sources in the aggregate,” we cannot agree. That statement concerns only what the BIA determined that the IJ considered in making the finding about the severity of the abuse that Ali would face that the BIA attributed to the IJ. But, as we have explained, the IJ made no such finding.

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witnessed being beaten or kicked . . . such that the agency could reasonably conclude she provided insufficient detail to show that such abuse by Somali security forces rose to the level of torture or that Ali was at risk that it likely would rise to the level of torture.” But, the IJ did not find that Ali had failed to meet his burden to show that he would likely be tortured by security forces in Somalia on any such basis. Rather, the IJ rejected his “security forces”-related ground for requesting deferral of removal pursuant to the CAT solely because the IJ found that “Harper indicated that the main motivation” of the security forces who “mean to do the respondent harm” is “they are either too busy to protect themselves and therefore they cannot protect other people” or to “harass people based on cultural differences,” such that they would not be acting “with the consent or acquiescence of a public official or other person acting in an official capacity” in visiting any abuse on Ali.

. . . .

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These are complicated cases. Indeed, the 1st Circuit spent 33 pages analyzing this particular case. 

By contrast, a supposedly (but, clearly not) “expert” BIA  appears to have taken about 5 minutes to “rubber stamp” the clearly defective denials prepared by staff attorneys in these life or death matters! How is this due process or fundamental fairness? No way!

If this were a law school exam, rather than a life or death “court” case, the BIA’s effort probably would have received a “D-“ or an “F.” Yet, Garland finds this ridiculously deficient level of performance acceptable where “only” the rule of law, constitutional due process, and human lives are at stake! 

One might expect this from a GOP AG. But, is this really what human rights advocates and progressives elected Biden to churn out?

I say “No.” This is NOT acceptable performance by the BIA! Nor is it acceptable professional performance by Garland, Monaco, Gupta, Prelogar, and the other members of the “Clueless Crew” supposedly in charge of the DOJ!

⚖️Due process for migrants is due process for all in America! 

🇺🇸 Due Process Forever!

PWS

05-08-22