"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Tragically, due process, for the most vulnerable and everyone else, is now a forgotten concept in the dysfunctional and unforgiving Immigration Court system. “This is due process?” PHOTO: The Daily Beast
All persons in the United States are entitled to constitutional due pro-cess.1 For those facing life or death hearings in the backlogged and dysfunctional executive branch immigration courts, due process requires representation, at government expense, if necessary.2
For decades, all three branches of our government have disgracefully ignored this simple truth.3 We now have a huge “representation gap” that undermines the legitimacy and fairness of our entire justice system.4
This leaves a key aspect of our legal system largely to the already over-worked and unfairly burdened pro bono bar. Dynamic leaders of the pro bono movement for immigrants in both the public and private sectors have set inspiring examples. I will highlight four of my “personal pro bono heroes.”
Yet, our Government has failed to invest in and build upon this leader-ship and these efforts. Today, the many wonderful non-governmental organizations (“NGOs”) that provide essential pro bono services to immigrants are outrageously being disparaged and attacked by the administration for their life-saving work.5
If, as Department of Homeland Security (“DHS”) Secretary Kristi Noem suggests, human rights NGOs are a “shadow government,”6 they are the only“national government” working to uphold democracy’s ideals and the rule of law in real-life situations.
We cannot rely on the federal government to fix or fund representation in Immigration Court. While heroic and greatly appreciated, local private sector and state government pro bono efforts are often uneven, largely uncoordinated, and lack a reliable unified funding strategy.7
The pro bono effort needs a “paradigm change” and consolidation. Consequently, I recommend the creation of a National Representation Center\ (“NRC”) to succeed and lead where our Government has failed.
This is the lede of my essay “Representation In The Age of Repression: America’s Real Immigration Crisis Is The Lack Of Representation In Immigration Court,” as published in the Symposium Edition of the University of Arkansas Little Rock Law Review. 48 U. ARK. LITTLE ROCK L. REV. 67 (2025) (footnotes omitted). You can read my complete essay and access the full edition here:
This Symposium Edition also contains great essays by Professor Matthew Boaz (U. of KY Law), my former Refugee Law & Policy student at Georgetown Law, on “Narrative Drip in Immigration Enforcement,” and Professor Elizabeth Jordan (U. of Denver Law) on “Bars to Asylum For Disabled and Criminalized Noncitizens,” as well as three great law review student notes!
Many thanks to Editor-in-Chief Chacey Schoeppel Wilcox, Symposium Editor Brooke S. Fudoli, previous Symposium Editor Alycia Jameson (now an IJC Fellow/Staff Attorney at The Resurrection Project Immigrant Justice Legal Clinic in Chicago), and their team at the Law Review. I would never have gotten through the process without your assistance.
So, there you have it folks. 52 years after the publication of my first student law review article in the 1973 Wis L. Rev., I’m still writing. Far fewer footnotes in this one though! 😎
This is not the BIA’s role. “We disagree” is not the same standard s clear error. A finding is not clearly erroneous simply because another interpretation is plausible. See Anderson, 470 U.S. at 574; Cooper v. Harris, 581 U.S. 285, 293 (2017). The Board failed to point to findings by the IJ that were “an obvious, plain, gross, significant, or manifest error or miscalculation.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 652 (1993). The IJ’s conclusion rested on unrebutted reports documenting systemic torture in Salvadoran detention facilities, as well as factors specific to Petitioner that heighten his risk of torture if detained.
The BIA failed to engage with these findings in any meaningful way. Instead, it came to its own conclusion, reweighing the evidence and ignoring facts specific to Petitioner to claim that the IJ’s conclusion was unsupported. The panel’s language mirrored de novo disagreement rather than deferential clear error review. The BIA may not reject the IJ’s findings simply because it would have decided differently.
Many, many thanks or Steven H. Schulman and his pro bono team at Akin Gump and to my Round Table colleagues who took the lead on this important effort.
Celebrating Courage: Ayuda Honored for Standing with Immigrant Families
We are proud to share that Ayuda has been honored with a Courage Project Award, a recognition of our unwavering commitment to ensuring safety, justice, and opportunity for immigrant communities across our region.
At a time when immigrant families continue to face uncertainty and challenges to their rights and dignity, this award acknowledges the extraordinary resilience of our clients and the dedication of our staff and volunteers who walk alongside them every day.
“We are deeply honored to receive this award, an acknowledgment of both our dedicated team and the remarkable courage of our clients, whose determination to build better lives inspires everything we do.” – Paula Fitzgerald, Executive Director, Ayuda
This recognition renews our commitment to stand with immigrant families and to continue building a community where every person is treated with compassion, dignity, and respect.
Thank you for sharing in this proud moment with us.
Warmly,
The Ayuda Team
CLICK ON THE BLUE BOX JUST BELOW FOR MORE INFORMATION ON THE COURAGE PROJE
Paula Fitzgerald Executive Director AYUDALaura Trask Director of Development & Communications AYUDA
Many, many congrats 🥳 and endless appreciation 🙏🏽 to the incomparable Paula Fitzgerald, the ever-amazing Laura Trask, and the rest of the all-star team 🌟 at AYUDA for their values-based leadership and success in making the DMV just the type of welcoming and supportive community for immigrants that all Americans should envy and emulate.
So proud and honored to be a member of the Ayuda Advisory Council. In fact, just about to head out to our latest event in a few minutes.
Fauziya Kasinga (Kassindja) and Layli Miller-Muro, founder of the Tahirih Justice Center, in a period clipping. Source: Tahirih website
REMEMBERING MATTER OF KASINGA: LANDMARK OR ABERRATION?
By Judge (Ret.) Paul Wickham Schmidt (former Chair, Board of Immigration Appeals)
I. CAREER HIGHPOINT
As my former Georgetown Law students know, Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) is my “favorite” of all of the thousands of cases and other matters I worked on over my five-decade career in immigration law. Kasinga established female genital mutilation (“FGM”) a basis for successfully claiming asylum.
At the time it was decided, Kasinga was a widely-recognized articulation and implementation of the guiding principle of modern (post WWII) refugee international refugee protection: “To ensure international protection for persons fleeing a wide range of socio-political events.” UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, at 2 (Reissued 2019). The decision acknowledged a long-overdue truth: Much of the persecution inflicted in today’s world stems, to a very significant degree, from gender antipathy.
Sadly, since that time, as I will discuss below, Kasinga’s promising potential has been limited by a sharp rightward shift toward restrictionism, nativism, anti-immigrant, anti-asylum, often openly misogynistic attitudes and policies targeting refugees (including asylum seekers like Ms. Kasinga) in the United States and internationally. Still, it has never been directly overruled and stands as an inspirational example of what refugee and asylum laws could and should become with more enlightened, practical, and human-rights-driven political leadership.
Indeed, during my subsequent 13-year career as an Immigration Judge (“IJ”) at the “Legacy” Arlington Immigration Court, my colleagues and I routinely granted many FGM asylum cases based on Kasinga. That appropriately generous legal treatment also extended to other types of gender-based claims.
II. THE DECISON
Kasinga was the “high point” of my tenure as BIA Chair. I also view it as the high point of the BIA’s positive asylum jurisprudence.
Notably, and rarely at that time and thereafter, it was a near-unanimous en banc precedent decision. Ten of my then-11 BIA colleagues joined my majority opinion. Only Judge Fred W. Vacca dissented, without writing a separate opinion. Nevertheless, Fred did assist my effort by volunteering to temporarily sit on my three-member panel so that I could concentrate on researching and drafting the opinion.
Kasinga was also one of the few BIA cases of my era where oral argument was held before the en banc Board in Falls Church, Virginia. The parties were represented by two exceptional, internationally-recognized scholar-advocates in refugee law.
Karen Muslao, the founder of the Center for Gender and Refugee Studies at Hastings Law, represented Ms. Kasinga. The “Legacy” Immigration and Naturalization Service (“INS”) was represented by its General Counsel, David A. Martin, a distinguished Professor then on leave from UVA Law, renowned refugee scholar, and co-author with later Deputy UNHCR and Georgetown Law Dean T. Alexander Aleinkoff of the leading textbook Immigration Process and Policy and many other publications.
Martin and INS nominally opposed the outright grant of asylum, and asked that the case be remanded for further examination of Ms. Kasinga and development of the record. Notably, then, unlike today, the BIA possessed “de novo” factfinding authority. The BIA was later stripped of such authority in a series of so-called “reforms” during the Bush II Administration by Attorney General John Ashcroft accompanying his infamous “purge” of the BIA, which ultimately resulted in my “exile” to the Arlington Immigration Court.
Most significantly, however, the “parties agree[d] that FGM can be a basis for a grant of asylum.” Kasinga at 358. The BIA articulated an independent formulation of the “particular social group” that was similar to, but not identical, to those proposed by the parties. Undoubtedly, however, the parties’ basic agreement that FGM could be a basis for asylum set the tone and facilitated the BIA’s decision.
Overall, Kasinga, including the deliberative process by which the decision was reached, was a practical embodiment of values and principles that I emphasized throughout my legal and judicial career: fairness, scholarship, timeliness, respect, and teamwork.
III. THE DIVISION
Nevertheless, even at the time Kasinga was issued, some potential cracks appeared. Judge Lauri Steven Filppu (joined by Judge Michael Heilman) and Judge Lory D. Rosenberg wrote separate concurring opinions.
Judge Rosenberg extolled the policy-making and guidance roles of the BIA and Kasinga’s potential as a “springboard” for future positive results in gender-based asylum and asylum law generally. In her words, “we have, in the majority opinion, set forth a road map for analysis appropriate for this case, which may easily be extrapolated and applied in upcoming adjudications, not only of gender-based asylum claims, but in other asylum applications.” Kasinga, at 377.
By contrast, the late Judge Filppu expressed a narrower view of the BIA’s proper role: Primarily as case-by-case adjudicators whose decisions occasionally had unavoidable policy implications. However, he viewed the BIA as not well-positioned to provide comprehensive policy guidance. In his view, such policy guidance “could more appropriately be issued through the legislative or regulatory process, not the Board’s case adjudication process.” He also expressed some frustration that the INS’s “concessions” had effectively precluded the BIA from remanding the case for “further development on the ‘social group’ question.” Kasinga, at 372n.3.
IV. ATTACKS ON KASINGA
A. Domestic Violence
The “next up” for the potential impact of Kasinga was the issue of domestic violence. Approximately six months following the issuance of Kasinga, an Immigration Judge (“IJ”) in San Francisco granted a domestic violence case based on a “particular social group” (“PSG”) of “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination,” drawing on the successful PSG in Kasinga.
However, by that time, there had been a major “shift right” on immigration policy. The GOP-controlled Congress had enacted, and President Clinton had signed, the IIRIRA, a “get tough” immigration bill. Meanwhile, in 1998, David Martin returned to teaching at UVA Law. Rather than accepting the San Francisco IJ’s decision, the INS appealed to the BIA.
This time, in 1999, Judge Filppu was “driving the train.” In a 10-5 decision the now expanded BIA, with six members of the former Kasinga majority plus Judge Vacca, joining Judge Filppu, sustained the INS appeal. The majority distinguished Kasinga, reversed the IJ, denied asylum, and ordered the Respondent to depart voluntarily or alternatively be deported to Guatemala. Matter of R-A-, 22 I&N Dec. 906 (BIA 1999; AG 2001). As an historical footnote, the Respondent never left the U.S. and eventually, during the Obama Administration, was quietly granted asylum in an unpublished decision, based on an uncontested “PSG” similar to that earlier rejected by Judge Filppu and the BIA majority.
Judge Rosenberg and I, along with two colleagues from the Kasinga majority, Judge John Guendelsberger and Judge Gustavo Villageliu, and recently appointed Judge (and former EOIR Director) Anthony C. Moscato, were relegated to the dissent, authored by Judge Guendelsberger. Eventually, all of these dissenters, save Judge Moscato, were “purged” from the BIA by Bush II Attorney General John Ashcroft, undoubtedly in large part because of our dissenting views and failure to “get in line” behind more restrictive legal positions on immigration ushered in by Bush II.
Matter of R-A-, however, proved to be a “can or worms,” resulting in its eventually being “vacated” by outgoing AG Janet Reno, on the eve of her departure, and remanded for the BIA to reconsider in light of a never-to-be finalized regulations on asylum. For the next 13 years, the case and the issue languished among various AG’s offices and the BIA. Needless to say, no regulations on gender-based asylum were ever finalized.
Finally, during the Obama Administration, in 2014, the BIA issued a somewhat tepid endorsement of domestic violence as a basis for asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). Unlike Kasinga, which was an en banc decision, this precedent was by a three-judge panel, which had become the norm under the so-called “Ashcroft reforms.” Therefore, we do not know whether all of the then BIA Judges agreed with the decision. Particularly annoying for those of us in the R-A- dissent, who had essentially staked our careers on standing for a more appropriately generous interpretation of Kasinga and asylum law, was the failure of the A-R-C-G- opinion to acknowledge that we had been right back in 1999.
Matter of A-R-C-G-, had its own tortured history. It was overruled by
Attorney General Sessions in 2018, Matter of A-B-, 27 I&N Dec. 316 (AG 2018) (“A-B- I”), reaffirmed, and explained, Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”), only to be reinstated by Attorney General Garland in 2021, Matter of A-G-, 28 I&N Dec. 307 (AG 2021) (A-G- III). However, Attorney General Bondi recently overruled A-G- III, Matter of S-S-F-M-, 29 I&N Dec. 207 (A.G. 2025). Thus, the highly restrictive view of gender-based asylum set forth in A-B- I and A-B- II is now in effect again.
B. False Portrayal of FGM As Extinguishing a Well-Founded Fear of Future Persecution
The “Ashcroft Purge” of the BIA in 2003, eradicated the “small but vocal asylum rights minority” at the BIA. This basically allowed the restrictionist views on asylum generally favored by the Bush II Administration to prevail with no visible internal “pushback” or published dissents by judges committed to a fair and generous construction of asylum law.
In 2007, Judge Filppu wrote a panel precedent decision arriving at the astounding, and factually wrong, conclusion that because FGM “is a type of harm that generally is inflicted only once, the procedure itself will normally constitute a ‘fundamental change in circumstances’ such that an asylum applicant no longer has a well-founded fear of persecution based on the fear that she will again be subjected to FGM.” Matter of A-T-, 24 I&N Dec. 296 (BIA 2007), overruled, 24 I&N Dec. 617 (AG 2008) (quoting BIA headnote).
To compound matters, the panel added another equally outrageous conclusion: “Unlike forcible sterilization, a procedure that also is performed only once but has lasting physical and emotional effects, FGM has not been specifically identified as a basis for asylum within the definition of a ‘refugee under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), so FGM does not qualify as ‘continuing persecution.’ Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003), distinguished.” Id.
Consequently, a woman who had actually suffered FGM could only qualify for asylum under a highly discretionary humanitarian process known as a “Chen grant” after the BIA’s precedent decision in Matter of Chen, 20 I&N Dec. 16 (BIA 1989). Even worse, an FGM victim who was ineligible for asylum because of the one-year bar or otherwise, was deprived for the “presumption of future persecution” for purposes of mandatory “withholding of removal” under the INA. Thus, they faced return to the very country where they had suffered persecution in the form of FGM!
Not surprisingly, the BIA’s absurdist interpretation in Matter of A-T- was castigated by the Second Circuit Court of Appeals in a strongly-worded decision, Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008). By that time, the Attorney General was Judge Michael Mukasey, a former U.S. District Judge in the SDNY, within the Second Circuit.
Mukasey was no particular friend to asylum seekers. But, he knew a “legal stinker” when he saw one. He “got the Second Circuit’s message” in Bah. Shortly thereafter, he “certified” Matter of A-T- to himself and vacated the BIA’s wrong-headed opinion. Matter of A-T-, 24 I&N Dec. 617 (AG 2008). Thus ended this particular attack on Kasinga and gender-based asylum.
C. Adding “Particularity” and “Social Distinction” to
Defeat PSG Claims
The essence of the PSG test used in Kasinga was a characteristic that was either “immutable” or “fundamental to identity.” This was derived from the BIA’s seminal decision on PSG, Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
Following the “Ashcroft purge,” the BIA, moved away from the Kasinga test as the sole determiner of PSG by engrafting two additional requirements. The first was a requirement that the PSG be “socially visible” (which later “morphed” into “socially distinct”). SeeMatter of C-A-, 23 I&N Dec. 951 (BIA 2006), afff’d, 446 F.3d 1190 (11th Cir. 2006), cert denied, 549 U.S. 1115 (2007).
The second was the “particularity” requirement. See Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008). Taken together, this now “three-part test” for PSG has generally been used restrictively by the BIA to limit the number of “cognizable” PSG’s and to deny protection to many deserving gender-based and other asylum claims.
V. CONCLUSION: UNFULFILLED POTENTIAL
“Kasinga at 30” is “alive but not well.” As noted by asylum scholar and my colleague on the Round Table of Former Immigration Judges, Judge Jeffrey S. Chase, even in today’s highly restrictive, overtly anti-asylum, often misogynistic climate, there are still many ways to potentially win gender-based asylum claims. See Chase, “Gender is a Particular Social Group,” Jeffrey S. Chase Blog, 09-11-25, https://www.jeffreyschase.com/blog/2025/9/11/gender-is-a-particular-social-group.
But, the results in asylum cases are now more heavily than ever dependent on the Circuit in which the case arises and the particular IJ assigned (in an era where many of the “best, brightest, and fairest” IJ’s are being summarily fired or forced out by the DOJ). This makes achieving life-saving protection much more difficult and uncertain for what should be “slam dunk grants” in a properly functioning system.
Yet, Kasinga’s survival as a precedent is an important reminder of what the U.S. asylum system could and should be under future more enlightened leadership. Upcoming generations must select and empower new dynamic progressive political and moral leaders who will reestablish the rule of law, reinstate the right to asylum, promote and protect humane values, and expand and build upon the full potential of Kasinga and other positive asylum decisions.
Perhaps, YOU will become one of those much-needed new progressive leaders! Due Process Forever!
On nexus in light of the 10th Circuit’s recently vacating Matter of M-R-M-S-, and other circuits’ rejection of the Board’s nexus standard stated in that decision.
Hon. Jeffrey S. Chase, Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Key quotes:
In what follows, I focus on (1) the current requirements for determining the validity of PSGs, (2) why gender alone satisfies all of those requirements, (3) how the Board went wrong in K-E-S-G-, and (4) strategies for continuing to argue and decide these cases.
. . . .
So where does this leave us? In the long term, the facts that (1) Chevron deference is no longer due to agency decisions following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 639 (2024); and (2) that the Board’s decision in K-E-S-G- is just so bad might result in the case being rejected by circuit courts at some point down the road.
But practitioners must argue these cases in the meantime, and adjudicators must decide them under this precedent for the time being. What follows offers some food for thought on the issue, divided by circuit.
. . . .
It is always advisable for representatives to present, and adjudicators to consider, all protected grounds that might constitute a reason for persecution, including political opinions imputed to women who assert their rights in patriarchal societies. See, e.g., Rodriguez Tornes v. Barr, 993 F.3d 743 (9th Cir. 2021); Hernandez-Chacon v. Barr, 948 F.3d 94 (2d Cir. 2020); Alvarez Lagos v. Barr, 927 F.3d 236, 254 (4th Cir. 2019).
It is further recommended that, in addition to gender plus nationality, representatives offer alternative PSGs containing additional narrowing grounds. The Attorney General’s recent decision reinstituting Matter of A-B-, and vacating the BIA’s decision in Matter of A-R-C-G-, does not constitute a prohibition on asylum grants based on “women of a particular nationality who are in a domestic relationship, and are unable to leave that relationship;” it merely requires additional work in presenting and deciding such cases. Many Immigration Judges continued to grant domestic violence based asylum claims in well-reasoned written decisions while Matter of A-B- was in force during the first Trump Administration.33 And Department of Justice attorneys at the time argued in litigation that the only binding impact of Matter of A-B- was vacating Matter of A-R-C-G-; the rest of the Attorney General’s decision was merely dicta.34
Here is “Sir Jeffrey’s” complete, highly cogent, analysis:
Thanks to my good friend and esteemed Round Table 🛡️⚔️ colleague for this timely, practical, analysis — “law you can use” as I always like to say. Fortunately, as the kakistocracy and its servants and enablers get shallower and shallower — eschewing meaningful analysis and often trashing precedent — to fulfill Trump’s “mass deportation/due process free agenda” and keep their jobs — “Sir Jeffrey” and many other outstanding “practical scholars” in the NDPA are stepping up to the plate and “hitting home runs!”⚾️
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Karen Musalo says:
On Tuesday Attorney General Bondi reinstated regressive rulings from the first Trump administration in an attempt to eliminate access to asylum for women and families seeking refuge. In Matter of S-S-F-M-, Bondi resurrects then-Attorney General Sessions’ 2018 Matter of A-B- ruling, which declared that women fleeing domestic violence should “generally” be denied asylum. In Matter of R-E-R-M- & J-D-R-M-, Bondi restores the 2019 Matter of L-E-A- ruling, which attempted to end asylum for families and children fleeing targeted violence. Taken together, Bondi’s rulings will effectively shutter some of the few remaining avenues for women and families fleeing persecution to find safety in the United States.
“This is a brazen power grab by Trump’s Justice Department – an attempt to rewrite our laws to deny protection to women and families escaping deadly violence,” said Professor Karen Musalo, Director of the Center for Gender & Refugee Studies (CGRS). “Bondi’s decision in S-S-F-M- attempts to turn back the clock on decades of hard-fought progress to recognize domestic and other forms of gendered violence as violations of women’s human rights. Her ruling in R-E-R-M- & J-D-R-M- is a calculated strategy to end asylum for families who deserve protection. Notwithstanding these attempts, judges are required to consider each case on its individual merits, and many women and families should still qualify for asylum. However, we know that Bondi’s decisions will cause confusion and provide a justification to judges who are inclined to reject asylum claims without fair consideration. In cases with life-or-death stakes, this will mean women and families being deported to countries where they face grave risks. CGRS represented Ms. A.B. in her landmark case and served as amicus in Matter of L-E-A-. We will continue to fight for a fair and just interpretation of our refugee law, in compliance with our international legal obligations, and will see the administration back in court.”
In this week’s decisions, Bondi attempts to erase decades of precedent to shut the door on refugee women and families. In S-S-F-M-, Bondi characterizes domestic violence and other forms of gendered violence as “private conduct,” returning to a long-discarded conception that such abuses are of no concern to the state – the same logic used to protect abusers from accountability and force survivors into the shadows. This reasoning could also be used to deny protection to LGBTQ+ refugees escaping persecution and children fleeing abuse and exploitation. Bondi’s decision ignores a robust body of legal precedent recognizing gender-based violence as a basis for asylum, including multipleprecedentialrulings rejecting Matter of A-B- under the first Trump administration.
In R-E-R-M- & J-D-R-M-, Bondi similarly attempts to upend decades of legal precedent and Justice Department policy recognizing families as a “particular social group,” one of the protected legal grounds upon which an asylum claim can be based. Her ruling in this case will make it exceedingly difficult for ordinary families who are persecuted based on their familial relationships to find safety together in the United States.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Hon. Jeffrey Chase says:
Basically the asylum law equivalent of holding that the earth is flat, and the sun revolves around the earth. In fact, we’re probably about 3 days away from NASA posting both of those things on its website.
Maria Daniella Prieshoff Managing Attorney Tahirih Justice Center Baltimore, MD PHOTO: Tahirih
Maria Daniella Prieshoff says:
No one should experience violence because of their gender. And if they do, they have the right to seek safety.
Yesterday, the Attorney General issued a decision to return to the flawed language originally set forth in the 2018 Matter of A-B- decision that will create new obstacles to accessing asylum protections for immigrant survivors fleeing violence. This is a step in the wrong direction when it comes to protecting women and girls from domestic violence, sexual assault, and other forms of gender-based violence.
Congress must act now to name gender as a sixth ground for asylum so that women and girls who fear persecution have a path to safety like those fearing harm because of their race, religion, or political opinions.
Join our Director of Public Policy and Litigation Counsel at a free webinar on September 24th at 12 p.m. ET to learn more about gender-based asylum, the impact of recent decisions, and Tahirih’s response: https://lnkd.in/e7faZAiy
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Bondi turns back the clock at EOIR:
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-004160Woman 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-004160Gender-based violence is a huge societal problem worldwide and a driver of forced migration. Yet, Bondi’s disingenuous approach seeks to deny reality and sweep truth under the rug, thus improperly denying needed protection to some of the world’s most deserving refugees. PHOTO: Creative Commons 4.0
Advocates have been fighting for justice for women and families under asylum laws for nearly three decades. They have achieved notable success, only to have well-respected, hard-earned, precedents that have benefitted the U.S. and protected worthy asylum seekers overturned by restrictionist politicos, then restored, then voided again. The fight for justice will continue.
I can’t see a feeble, Trump-dominated Congress acting to solve this problem. But, individual cases might still be winnable in some Immigration Courts with carefully considered strategies. And, there should be plenty of opportunities to challenge Bondi’s politically biased and defective “reasoning” in Circuit Courts.
That’s where organizations like the Center for Gender and Refugee Studies, Tahirih Justice Center, and the Round Table will continue to play key roles in fighting injustice and promoting due process for all!
“Review by Article III courts thus ultimately leads to more efficient adjudication and fewer errors as IJs and the BIA work through their existing backlogs.”
FROM OUR BRIEF:
With this dynamic in mind, it becomes clear that
Article III appellate review serves as a critical device
to correct past mistakes and avoid future ones. Since
2014, the courts of appeals have remanded more than
10,000 cases back to the BIA. During this same time
period, the courts of appeals have issued remands in
approximately 16 to 20 percent of all BIA appeals
(with a remand rate of around 20 percent in 2024).10
Because Article III judges do not face the same time
pressures or resource limitations as their IJ and BIA
counterparts, they are better positioned to engage
meaningfully with and analyze the legal principles at
hand. Judge John M. Walker Jr. of the Second Circuit
echoed this sentiment when he noted that “[o]ne of
[his] court’s problems with the BIA is that it rarely
seems to adjudicate the outstanding legal issues in a
10 U.S. Courts, Federal Judicial Caseload Statistics: 2024,
Richard W. Mark, Esquire Partner Gibson Dunn New York PHOTO: Gibson Dunn
Many thanks to Richard Mark and our pro bono friends at Gibson Dunn, to our leader Hon. “Sir Jeffrey” Chase, and to all of my colleagues who assisted in this magnificent effort!
Today, the 10th Circuit rejected the erroneous nexus standard enumerated by the BIA in Matter of M-R-M-S-. The Amicus Brief of our Round Table of Former Immigration Judges played a role in the outcome, as the circuit court stated:
“as an amicus brief from former IJs and BIA members explains, this standard now requires IJs to engage in a new and impermissible analysis for family-based asylum claims. See Former IJ and BIA Members Amicus Br. at 5–19.”The court also agreed with our view that even the BIA’s “classic example” of the Romanov family (stated in Matter of L-E-A-) would fail the Board’s own nexus test as stated, as the Romanovs would be found to have been targeted for political reasons, not due to specific animus against the family itself. Much thanks to Erik B. Kundu and Becca Human of Perkins Coie for their outstanding work in representing us on the brief.https://lnkd.in/ehYKffDm
010111288784.pdf
ca10.uscourts.gov
The case, linked above, is O.C.V. v. Bondi, 10th Cir., 08-26-25
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesKnightess of the Round Table
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So proud to be a member of this amazing group, now approaching 100 members thanks to the toxic short-sighted actions of the Administration, that fights for justice, due process, fundamental fairness, and a better America, and opposes and exposes the dangerous nonsense of the Trump kakistocracy every day!
“Amici submit this brief to address a growing and troubling trend in CAT adjudications: the demand for statistical or quantitative proof to establish that an applicant is “more likely than not” to be tortured. In amici’s view, this misapprehension of the legal standard not only distorts the meaning of CAT, but imposes an impossible evidentiary burden on applicants, particularly in opaque or repressive regimes where torture is pervasive but poorly documented.”
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Round Table Leader “Sir Jeffrey” Chase reports on July 21, 2025:
Today, U.S. District Judge Amir H. Ali granted a preliminary injunction in American Gateways v. USDOJ (order attached), restoring the NQRP Program providing representation to respondents judged by the IJ to be mentally incompetent. The program had been abruptly terminated by EOIR.
Our Round Table filed an amicus brief in support of the motion (document 19-1), which was referenced twice in the judge’s decision, on p. 24 (in support of the conclusion that “Immigration courts have come to depend on the program to move complicated cases forward fairly and efficiently,” and on p. 13, our brief is quoted as stating that such respondents “may remain detained for extended periods.”
As the decision states, EOIR’s termination of the program requires “people who have been adjudicated by immigration
courts to be mentally incompetent under existing procedures will be left to do precisely what a court has just found they are not capable of doing—represent themselves in legal proceedings.” (Emphasis in the original).
Adina Appelbaum of the Amica Center (counsel for petitioners) said ” Thank you so much for contributing such a powerful amicus to support this outcome.”
Let’s take a moment to celebrate, and thanks to all who contributed to our supporting role in this outcome.
“Lady Injustice” has found a home at Trump’s dysfunctional EOIR! Public Realm
News of the changes to the attorney program trickled from the administration in a confusing mix of messages.
No changes planned as of Jan. 24, then an email signaled a cut April 3, then a rapid reversal: disregard the cut. And finally, the official notice from EOIR Acting Director Sirce Owen: As of April 25, the funding was cut “for convenience.”
No other justification for the changes has been delivered.
Paul Schmidt, former immigration judge and chair of the Board of Immigration Appeals, called it another battle in the “administration’s all-out war on due process.”
“It’s disheartening when we took a system that was created to implement best practices and now we’re back to the worst way to do this,” Schmidt said.
Despite the administration’s aim to streamline and accelerate immigration judgments, the funding cut could backfire, said Dana Leigh Marks, a retired immigration judge.
“It’s a travesty,” Marks said. “It’s cutting off your nose to spite your face. These are difficult cases that immigration judges know move faster with a qualified representative.”
Marks said judges will be left to wade through immigrant stories for relevant legal elements and the lack of attorneys will create more opportunities for error. That could in turn lead to more appeals and slower judgments.
Another day in court
For Paz Cartagena, the young Honduran facing removal, he’s back on his own, writing songs and sketching art while he awaits his court date.
His favorite song, “November Rain” by Guns N’ Roses plays in his head while he battles his depression and suicidal ideation.
Woodruff, his former attorney, still keeps in touch via phone despite officially withdrawing from the case. She worries his mental health has only worsened as he faces a judge who signaled Paz Cartagena should be able to represent himself.
“I don’t know what to tell the judge,” he said. “I don’t know what I am supposed to do.”
On June 30, he’ll plead his case alone in front of Immigration Judge Elizabeth McGrail.
It could be the confused, quiet Paz Cartagena speaking, or the sharp version he feels on good days.
Here’s the full article from Nick Penzenstadler @ USA Today:
“as an amicus brief from former IJs and BIA members explains, this standard now requires IJs to engage in a new and impermissible analysis for family-based asylum claims. See Former IJ and BIA Members Amicus Br. at 5–19.”The court also agreed with our view that even the BIA’s “classic example” of the Romanov family (stated in Matter of L-E-A-) would fail the Board’s own nexus test as stated, as the Romanovs would be found to have been targeted for political reasons, not due to specific animus against the family itself. Much thanks to Erik B. Kundu and Becca Human of Perkins Coie for their outstanding work in representing us on the brief.https://lnkd.in/ehYKffDm